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PUSHPAGIRI MEDICAL SOCIETY v. STATE OF KERALA - WP(C) No. 18899 of 2006(Y) [2007] INKLHC 289 (4 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

1. PUSHPAGIRI MEDICAL SOCIETY,
... Petitioner

Vs

1. STATE OF KERALA,
... Respondent

2. THE PRINCIPAL SECRETARY TO GOVERNMENT,

3. THE COMMISSIONER FOR ENTRANCE

4. THE DIRECTOR OF MEDICAL EDUCATION,

For Petitioner :SRI.SANTHOSH MATHEW

For Respondent :GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.V.K.BALI The Hon'ble MR. Justice P.R.RAMAN

Dated :04/01/2007

O R D E R

V.K. BALI, C.J. & P.R. RAMAN, J.

2. The second ever largest Bench consisting of eleven Judges was constituted culminating into the decision in T.M.A. Pai Foundation when the judgment rendered by the Supreme Court in St.Stephen was doubted. The Supreme Court in T.M.A.Pai Foundation framed eleven questions to be answered by it, some of which were answered and some left to be decided by the regular Bench. Even though one of the ever largest Bench was constituted, the aftermath of the decision in T.M.A.Pai Foundation was not encouraging. The Bench consisting of 11 Honourable Judges gave five opinions, the majority decision was delivered by the then Chief Justice; the four Honourable Judges delivered three separate opinions partly dissenting from the majority view. The interpretation of the judgment of the Supreme Court in T.M.A.Pai Foundation almost became a game to be played by the State Governments and also the educational institutions, who would interpret the majority opinion in their own way. This lead to flooding the courts at all levels with multi faceted and multi dimensional litigations. The chaos that resulted because of the rival parties interpreting the judgment of  W.P.(C) No.17873/2006 etc. - 4 - the Supreme Court in their own way paved way for constitution of yet another Bench of five Judges in Islamic Academy of Education v. St ate of Karnataka, (2003) 6 SCC 697, (hereinafter referred to as Islamic Academy of Education case) wherein as well two opinions were expressed, one by a majority of four Honourable Judges, delivered by the then Chief Justice, whereas the other by one Honourable Judge, who delivered a separate judgment. Despite the judgment in Islamic Academy of Education, it was accepted both by the Government and by the privately managed aided or unaided institutions that the position in law was still not clear. There were still unsettled issues and there was still no clarity in the decision of eleven Judges in T.M.A.Pai Foundation, thus resulting into constitution of seven Judges Bench in P. A. In amdar's case. Indeed by this decision, some of the issues have been settled whereas, concededly, some still need to be settled and the cases including such unsettled points are still pending decision of the Supreme Court, one of which pertains to the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fee and  W.P.(C) No.17873/2006 etc. - 5 - Procedure for Admission and Fixation of Fees) Act, 2004 (hereinafter referred to as 'Act of 2004'). It is at this stage when the judiciary in the country has struggled for more than half a century to find out solutions to some of the educational related problems and when answer to those problems is still awaited and when so far the challenge to the Act of 2004 is still alive, the Government of Kerala has come up with the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 (hereinafter referred to as 'Act of 2006'). To the questions already debated, answered or unanswered, many more dimensions have been added. Sea changes of far reaching consequences have been made. The admission of students in all professional colleges or institutions for all seats except NRI seats is now to be made through Common Entrance Test conducted by the State Government, irrespective of any judgment, decree or order of any court or any other authority. The right of management institutions, whether aided or unaided,  W.P.(C) No.17873/2006 etc. - 6 - whether run by the religious minority or otherwise, to make admissions have been completely taken away. The fee structure has to be determined by the Regulatory Committee and the same shall be binding on unaided professional colleges or institutions for a period of three years. Whatever rights the management had earlier with regard to determination of fee have also been taken away. The status of the minority institutions now, for the first time, shall be determined by Government on factors enumerated in Section 8. By virtue of judicial precedents, the status of minority institution was to be determined on the basis of percentage of population of a particular religious minority taking State as a Unit. In addition to this condition for determination of minority status of an institution, further conditions that the number of professional colleges or institutions run by the linguistic or religious minority community in the State shall be proportionately lesser than the number of professional colleges or institutions run by the non-minority community in the State and that the number of students belonging to the linguistic or religious minority community to which the college or  W.P.(C) No.17873/2006 etc. - 7 - institution belongs undergoing professional education in all professional colleges or institutions in the State shall be proportionately lesser than the number of students belonging to the non-minority community have been added. In the words of the Honourable Supreme Court dealing with the appeals arising from the interim directions issued by this Court in these very cases, there are drastic changes in the Act of 2006 in the mode of admission and also determination of minority status of the institution. The petitioners take strong exception to the provisions dealing with the right of admission of students, determination of status of a minority institution, fee structure and other provisions in the Act of 2006. The contentions raised in challenging the provisions of the Act of 2006 match with the long title and preamble of the Act.

3. Before we may, however, proceed to deal with the pleadings and contentions raised by learned counsel appearing for the parties on the constitutional validity of the provisions under challenge, we only hope and pray Almighty that the litigation on education with such far reaching consequences  W.P.(C) No.17873/2006 etc. - 8 - which may change the very course of education in the nation and that started in Re. Kerala Education Bill case from Kerala only may end with the decision on the provisions of Act of 2006 by this Court or by the Apex Court, once again arising from the State of Kerala. 4 We may also mention that at the time of admission of the case, petitioners sought stay of operation of the Act. A Single Bench of this Court before whom these petitions came up for initial hearing on the prayer made by the petitioners issued interim directions that the procedure with regard to sharing of seats between the Government and the Managements of Self Financing Institutions and also the fee structure as envisaged under the Act of 2004 would govern the field for this academic year, 2006-2007, vide orders dated 18th July, 2006. Aggrieved, the State preferred appeals which were dismissed by a Division Bench of this Court vide orders dated 29th July, 2006. Still aggrieved, the State preferred appeals to the Supreme Court which were dismissed by the Honourable Supreme Court vide orders dated 25th August, 2006.  W.P.(C) No.17873/2006 etc. - 9 - FACTUAL MATRIX

5. The factual matrix leading to the filing of the petitions has been extracted by us from W.P.(C) No.17873 of 2006, wherever, however, required additional facts may be given by giving a reference to such petitions wherein additional facts might have been pleaded. Petitioners 1 and 2 are the Managements of two reputed Self Financing Nursing Institutions whereas other petitioners are students in B.Sc. (Nursing), in Self Financing Colleges. Petitioners 1 and 2 claim to be minority managements representing two Catholic denominations of Christian community. The first petitioner's college has been established by the arch Diocese of Ernakulam and the second petitioner's college was established by the Arch Diocese of Verapoly, both through Trusts/Societies created by them. It is the case of the petitioners that being directly established by the community through its higher hierarchy, no declaration of any status is necessary for exercising their rights under Article 30(1) of the Constitution. The Self Financing Professional Colleges started coming in the State of Kerala as a phenomenon in 2002  W.P.(C) No.17873/2006 etc. - 10 - when ten Engineering Colleges were sanctioned by the AICTE. At that time, admissions to the Self Financing Colleges were governed by the judgment of the Supreme Court in Unnikrishnan's case, which formulated a scheme with such ingredients that all admissions to the professional colleges should be through a Common Entrance Test and allotment of admission should be through a Single Window System by the State, 50% of the seats would be free seats and the remaining 50% seats would be payment seats, free seats means rate of fee would be as in Government College, the fee payable would be decided by the State, there would be no management quota and there should be no capitation fee. The petitioners have made a mention of the leading Supreme Court judgments referred to above which, according to them, would give them the right to chose the students for admission, especially of the Minority Management. The consortium of managements can evolve to themselves a fair and transparent method of selection and as per the decision of the Supreme Court, the admission process cannot be taken over by the Government. If, however, there may be  W.P.(C) No.17873/2006 etc. - 11 - foul play or malpractices in the examination conducted by the consortium of managements, Government may take over the examination, but it can be limited only for that year and not permanently for all years to come. It is further the case of the petitioners that in so far as the selection process and tests conducted by the consortium of Nursing Management is concerned, there was no complaint from any quarters so far. In the background as mentioned above, the petitioners have challenged the validity of Act of 2006 by prominently highlighting five areas of disputes reproduced in paragraph 78 of the petition, which read as follows:

"(1) In the areas of redefining 'minority' and imposing conditions to satisfy the tests of 'minority', which are unheard of in the Judicial History. (2) Laying down a condition that admissions are possible only from the rank list of the Commissioner for Entrance Exam in the CET, and that all allotments will be done by the Commissioner, except for NRI seats; (3) 50% seats will be mandatorily 'freeship' seats, thus bringing back the 'Unnikrishnan's Scheme' which was held unconstitutional by the Hon'ble Supreme Court.  W.P.(C) No.17873/2006 etc. - 12 - (4) Has brought in the principles of reservation in minority unaided institutions also, which is expressly prohibited under the 93rd amendment of the Constitution. (5) Fees will be fixed by a Fee Regulatory Committee, only". Petitioners plead that there are eight Self Financing Medical Colleges in the State of which five belong to Christian management, one belongs to Muslim management and two belong to Hindu management. Out of the total 49 Self Financing Engineering Colleges, eighteen belong to Christian management, thirteen belong to Muslim management, one belongs to Secular Organisation and seventeen belong to Hindu management. Out of the 51 nursing colleges, 28 Colleges belong to Christian management, which itself is more than 50% and if the provisions contained in Section 8 of the Act of 2006 are to be applied, the petitioners state that there cannot be any minority institution in the State. There is no need to detail further the facts as given in the petition, but for to say that primary challenge in the writs is to provisions of the Act of 2006 as mentioned above. The  W.P.(C) No.17873/2006 etc. - 13 - grounds taken in the petition in challenging the provisions would be given while dealing with the provisions under challenge separately.

6. The respondent State has entered defence and joined issues with the petitioners on all fronts. In the counter affidavit filed by the State, it has been averred that the allegations made in the petitions are false and baseless. The Act of 2006 is in conformity with the Constitution of India and also the dictum of the Supreme Court in Inamdar's case. The Act of 2006 is in the larger interests of the public, especially the student community and is aimed at ensuring admissions to private unaided professional colleges in a fair, transparent and non-exploitative manner. Each provision of the Act is incorporated to give effect to the judgments of the Supreme Court in its entirety and the relevant direction of the Central Government. The Act has been passed keeping in view the aspirations of the people to have a comprehensive legislation reflecting the socio economic and demographic needs and concerns of the State. The allegation of the petitioners that the  W.P.(C) No.17873/2006 etc. - 14 - Act is aimed at nationalisation of seats has been denied. It is further averred that there is no classification as Management seats or Government seats and does not provide for seat sharing arrangement between Government and Management. The admission to the various courses is only through the Common Entrance Test conducted by the State Government followed by centralised counselling and this stipulation in the Act is in conformity with the judgment of Supreme Court in Inamdar's case. The State can provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing maladministration. If the admission procedure adopted by a private institution or group of institutions fails to satisfy the triple test, i.e. it is fair, transparent and non- exploitative, the admissions can be taken over by the State. The preamble to the Act clearly sets out that the need for stipulating admissions can only be made through the common entrance test conducted by the State followed by the centralised counselling in view of the past experiences of maladministration of the entrance test held by the consortium or association of private professional  W.P.(C) No.17873/2006 etc. - 15 - colleges in the State. The legislature would insist on admissions only through this manner as it was felt that large scale maladministration and exploitative methods were adopted by the private professional colleges. The power to admit is the root cause of the evil of capitation fee and merit being given a go-by, the legislature was constrained to pass the new law. The recitals in the preamble to the Act are stated to be part of legislative facts and the same cannot be the subject matter of dispute and would be beyond the purview of judicial review. For deciding the validity of a law, the statements contained in the Preamble should be presumed to be correct and cannot be disputed. If the preamble is read as a whole, it would be evident that the object and provisions of the Act falls within the four corners of the provisions of the Constitution as well as the decision of the Supreme Court in Inamdar's case. It is then pleaded that the legislative facts cannot be the subject matter of dispute or judicial review. Mr.Justice K.T.Thomas, Chairman of the Committee for overseeing the conduct of examinations has pointed out that the Management of Self Financing, Medical,  W.P.(C) No.17873/2006 etc. - 16 - Dental, Ayurveda and Sidha Colleges have violently violated the guidelines issued by the Supreme Court by conducting rigged and farce Entrance Test for admitting students as if they are merit students. A copy of the proceedings of Mr.Justice K.T.Thomas Committee dated 03.6.2004 and a copy of the letter dated 21.6.2004 have been annexed to the counter affidavit, as Exts.R1(a) and Ext.R1(b). A letter dated 30.7.2004 was written by a student complaining about the manner in which the entrance examination was conducted by the group of private colleges in 2004, copies whereof have been annexed in the counter affidavit as Exts.R1(c) and R1(d). There were several complaints voiced by different sections of the people with regard to commercialisation of education by the managements of minority and non-minority unaided educational institutions. This has been taken note of by Mr.Justice K.T.Thomas Committee in the specific context of admission made in Kerala in Ext.R1(a). The present Government in the State assumed office on 18.5.2006. One of the prime initiatives of the Government was to fulfil the the promise given to the people in regard to bringing  W.P.(C) No.17873/2006 etc. - 17 - in legislation to regulate unaided colleges. Following were the specific promises made in respect of regulating unaided education: A. Ensure social justice in admission and fees. B. Ensure excellence in education through merit based admission. C. Prevent capitation fee and commercialisation of education. D. Set up a higher education fund for giving assistance to needy students. E. Scientific revision of norms for selection of students for professional courses. Immediately after assuming office, the Government took steps to bring in the proposed legislation. This included preparation of the position paper and holding of widespread discussions with different stakeholders including the management of unaided colleges. The Bill for the above was introduced on 22.6.2006 in the very first session of the Legislative Assembly. Except for revising the norms for the conduct of entrance examination, all other promises stated above were taken care of in the Bill. The Bill was examined by the Subject Committee and unanimously  W.P.(C) No.17873/2006 etc. - 18 - passed by the Assembly on 30th June, 2006. The Governor gave assent to the Bill on 2.7.2006. From the facts as mentioned above, it is pleaded that the Government acted expeditiously in accordance with the directives given by the Supreme Court in Inamdar's case to Central/State Governments to bring in suitable legislation to regulate unaided professional education at the earliest, thereby also honouring the promise given to the people. The moment the present Government came to power, the entire people of Kerala knew for certain that admissions to the unaided professional courses for this year would be held as per the new Act. The managements were taken into confidence by the Government. The first draft of the Bill introduced in the Assembly did not contain any provision for privilege seats. The provision for 15% privilege seats was introduced later, even as the Assembly was debating the Bill, to accommodate the interests of Managements. The impression given by the Managements was that they were fully satisfied with the changes made in the draft and they would fully co-operate with the Government for the implementation of the Act, but behind the  W.P.(C) No.17873/2006 etc. - 19 - scene, they were also making arrangements for pre-empting the implementation of the Act and creating a fait accompli situation by admitting students without reference to the provisions of the Act or the Supreme Court directives for fair, transparent and non-exploitative admission procedure. Like the petitioners who have given reference to various judgments of the Supreme Court and interpret it in their favour, the State too has made a reference to some judgments, in particular Inamdar's case, and would interpret the said judgments in their favour. The legal grounds pressed into service by the petitioners have been countered with equal vehemence. Various organisations espousing the welfare of the student community and the general public interest have moved application for impleadment and vide separate orders some of the petitions have been allowed. They have filed separate counter affidavits as well. There will be no need to make a mention of the pleadings made therein, as by and large, the Act of 2006 is sought to be defended in the like manner as has been done by the State. Backdrop of events, Judicial Precedents and relevant  W.P.(C) No.17873/2006 etc. - 20 - provisions of the Act including those under challenge:

7. Before we may advert to the provisions of the Act of 2006 which are under challenge, we propose to give the backdrop of events and judicial precedents that may touch on the controversy in issue. The Constitution Bench consisting of five Hon'ble Judges in Unnikrishnan's case held that private aided institutions cannot charge fee higher than the Government institutions; the institutions in the matter of admission should follow only merit and; the activity of establishing educational institution is neither a trade or business nor a profession and shall thus be not entitled to the protection under Article 19(1)(g) of the Constitution. The authorities granting recognition or affiliation are duty bound to insist on conditions ensuring inter alia fairness in matters of admission.

8. Some private educational institutions, both aided and unaided established by the minorities and non-minorities filed writ petitions before the Supreme Court asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations which unnecessarily  W.P.(C) No.17873/2006 etc. - 21 - impinge upon their autonomy. The petition filed by Islamic Academy of Education and connected matters came up for hearing before the Five Honourable Judges of Supreme Court in T.M.A.Pai Foundation. The Bench was of the prima facie view that Article 30 of the Constitution did clothe a minority educational institution with the power to adopt its own method of selection and since the decision of the Court in St.Stephen's case was doubted, the matter was thus referred to a larger Bench of seven Judges. On 6.2.1997, however, the Bench seized of the matter directed that the case to be placed before a Bench of eleven Judges. When the matter came up for hearing before the 11 Judges, the following order was passed. "Since a doubt has arisen during the

course of our arguments as to whether this Bench would feel itself bound by the ratio propounded in Kerala Education Bill, 1957 in Re. (AIR 1958 SC 956) and Ahamedabad St.Xaviers College Society v. State of Gujarat, it is clarified that this sized Bench would not feel itself inhibited by the views expressed in those cases since the present endeavour is to discern the  W.P.(C) No.17873/2006 etc. - 22 - true scope and interpretation of Article 30(1) of the Constitution, which being the dominant question, would require examination in its pristine purity. The factum is recorded". The Bench framed 11 questions for its answer. The questions that may be relevant for determining the controversy in the present case in the context of provisions of the Act of 2006 would be mentioned in the latter part of this judgment.

9. Culled out from the questions and answers to the same, it may be stated that the Scheme as framed in Unnikrishnan's case was abolished and it was held that there could not be nationalisation of admission process. The right to provide education under Article 19(1)(g) read with Articles 26 and 30 was recognised, whilst accepting that minority rights under Article 30 were specially protected as distinct and separate. The distinction between Government, unaided, aided and minority institutions was accepted. That maximum autonomy was to be given to unaided institutions. The aided institutions were to have autonomy and not to be treated as Government departments. The unaided, specially minority  W.P.(C) No.17873/2006 etc. - 23 - institutions were to have autonomy in matters of admissions, right to determine their fee structure and exemption from any Government quotas, the Minorities were to be allowed to admit students of their choice in accordance with St.Stephen's case i.e. 50% for management and 50% for Government. The judgment in T.M.A.Pai Foundation was delivered on 31st October, 2002. We have already mentioned that this judgment was interpreted by the State Governments and Educational Institutions in their favour resulting into further litigation. There were certain anomalies and doubts needing clarification. This resulted into the constitution of 5 Judges Bench in Islamic Academy of Education case. The gist of the answers to the four questions formulated in Islamic Academy of Education have been given in Inamdar's case by the Supreme Court. It may be said that it was held that even in unaided institutions quota would be permitted and students would be selected on the basis of Common Entrance Test and further the selection committee would oversee the admission and fees. This decision was rendered on August 14, 2003. On 6.1.2005, the National  W.P.(C) No.17873/2006 etc. - 24 - Commission for Minority Educational Institutions Act, 2004 came into being. The purpose of the Act was to ensure recognition and affiliation of minority institutions . Inasmuch as the questions framed in Islamic Academy of Education were not summed up or pointedly answered, another Bench of Seven Judges was constituted in Inamdar's case the decision whereof was rendered by the Supreme Court on 12th August, 2005. The Supreme Court in Inamdar's case, confined its discussion on the four questions set out in paragraph 27 of the judgment. The answers given to those questions would be dealt with in the later part of this judgment. On 18th January, 2006, Article 15 of the Constitution was amended adding Article 15(5) to the Constitution to permit quotas in educational institutions for socially and educationally backward classes other than minority institutions. On 28th March, 2006, the National Commission for Minority Educational Institutions (Amendment) Act 2006 came into being, the purpose of which was to recognise and give effect to rights of minority educational institutions.

10. Before the decisions in T.M.A.Pai Foundation,  W.P.(C) No.17873/2006 etc. - 25 - Islamic Academy of Education and Inamdar were rendered by the Supreme Court, the State of Kerala came up with the regulations known as the Kerala Unaided Professional Colleges (Admission of Students and Fixation of Fee) Regulations, 2002, wherein 50% of the seats were earmarked to be filled up by the Commissioner for Entrance Examinations for Travancore/Malabar, Ezhava, Muslim, SC/ST candidates and vide orders dated 19.12.2002, the State Government fixed the fee of Rs.8,750/- per student per year for the 50% of students allocated by the Controller of Examinations and special fee up to Rs.20,000/- was also permitted. This Regulation of 2002 was challenged by the petitioner's College in O.P.No.39420 of 2002 and vide judgment dated 20th January, 2003, this Court allowed the writ petition and held that reservation of seats to the extent of 50% by the Government was not valid in view of the decision in T.M.A. Pai Foundation case, that the fee structure stipulated in the notification dated 19th December, 2002 was held to be arbitrary and illegal and contrary to the rule enunciated in T.M.A.Pai Foundation case. It was further held therein that the  W.P.(C) No.17873/2006 etc. - 26 - fee of Rs.1.5 lakhs as admitted by the State Government as expenses per student in the medical colleges run by the State can be collected by the private colleges as an interim measure. It was also held that a Committee be constituted within three months under Regulation 6 and in the meantime, the institutions would fill up the seats in the ratio of 75 : 25. The Communal and Regional reservations were held to be not permissible. The application for review carried against the order aforesaid was dismissed on 17.2.2003, by holding that the students admitted by them were not lacking in merit after going through the entire record and the performance in the qualifying examination, that the fee of Rs.1.5 lakhs was not excessive and that the demand for 50% was not justified. A Special Leave petition was filed by the State Government to the judgment referred to above, where in no interim order was granted by the Supreme Court. On 23.8.2003, by an interim order, this Court fixed the fee as Rs.1.5 lakhs per annum provisionally, whereas, the Commissioner of Entrance Examination vide order dated 19.9.2003 fixed the fee at Rs.11,825/- for the 50% students nominated by the State  W.P.(C) No.17873/2006 etc. - 27 - Government. This order was challenged in this Court in W.P.(C) No.29855 of 2005 and this Court stayed the operation of the order in the light of its earlier judgments. For the academic year 2003-04, students were admitted on the basis of individual entrance tests owing to constraints of time, as provided in para 21 of the judgment in Islamic Academy of Education. In 2004, the Committee headed by Justice K.T.Thomas was appointed as Admission Supervising and Fee Fixation Committee and on 28.5.2004, the Committee for fixation of fees in private self financing colleges set up in accordance with the guidelines in Islamic Academy of Education case fixed the fee for MBBS course. By proceedings dated 3.6.2004, the Committee headed by Justice K.T.Thomas held that fee of Rs.4.35 lakhs was excessive and exclusionary and therefore, not fair and directed the postponement of test scheduled on 13th June, 2004. The examination was conducted as per schedule on 13th June, 2004. The order aforesaid, dated 3rd June, 2004 was challenged by the petitioners in W.P.(C) No.16903 of 2004. On 15.7.2004, the Act of 2004 came into being. This Act was challenged directly before  W.P.(C) No.17873/2006 etc. - 28 - the Supreme Court and the petitions filed in that behalf are still pending with interim arrangements. For every subsequent academic year, similar interim directions have been issued. The

interim direction dated 29.5.2006 reads as follows:

10.

(w) Unaided Professional College or Institution means professional college or institution which is not receiving any aid or grant in aid from any State or Central Government and includes minority and non- minority professional colleges or institutions." The manner of admission of students to professional college has been prescribed in Section 3 which reads as follows: "3. Method of admission in Professional

Colleges or Institutions.--Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court or any other authority, admission of students in all professional colleges or institutions to all seats except  W.P.(C) No.17873/2006 etc. - 38 - Non-resident Indian seats shall be made through Common Entrance Test conducted by the St ate followed by centralised counselling through a single window system in the order of merit by the State Commissioner for Entrance Examinations in accordance with such procedure as may be specified by the Government from time to time." The constitution of Admission Supervisory Committee and the procedure to be adopted by it has been prescribed u/s.4 of the Act which in so far it may be relevant reads as follows:

"4. Admission Supervisory Committee.-- (1) The Government shall constitute an Admission Supervisory Committee to supervise and guide the process of admission of students to unaided professional colleges or institutions consisting of the following members, namely:

(i) A retired Judge of the Supreme Court or High Court - Chairperson (ii) xxx (iii) xxx (iv)xxx

(v) xxx (vi)xxx (2) The Admission Supervisory Committee  W.P.(C) No.17873/2006 etc. - 39 - may adopt its own procedure for the conduct of its business. (3) xxx (4) xxx (5) xxx (6) The Admission Supervisory Committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a view to ensure that the process is fair, transparent, merit-based and non-exploitative under the provisions of this Act. (7) The Admission Supervisory Committee may hear complaints with regard to admission in contravention of the provisions contained herein. If the Admission Supervisory Committee after enquiry finds that there has been any violation of the provisions for admission on the part of the unaided professional colleges or institutions, it shall make appropriate recommendation to the Government for imposing a fine up to rupees ten lakhs and the Government may on receipt of such recommendation, fix the fine and collect the same in the case of each such violation or any other course of action as it deems fit and the amount so fixed together with interest thereon shall be  W.P.(C) No.17873/2006 etc. - 40 - recovered as if it were an arrear of public revenue due on land. The Admission Supervisory Committee may also declare admission made in respect of any or all seats in a particular college or institution to be de hors merit and therefore invalid and communicate the same to the concerned University. On the receipt of such communication, the University shall debar such candidates from appearing for any further examination and cancel the results of examinations already appeared for. (8) The Admission Supervisory Committee may if satisfied that any unaided professional college or institution has violated any of the provisions of the Act, recommend to the University or statutory body for withdrawal of the affiliation or recognition of such college or institution or any other course of action it deems fit". Prohibition of collecting capitation fee and consequences of collecting it has been provided in Section 5 of the Act. The factors that may determine fee have been mentioned in Section 7. The determining factors for according recognition and conferring status as unaided minority institution have been  W.P.(C) No.17873/2006 etc. - 41 - detailed in Section 8 which reads as follows: "8. Determining factors for according

recognition and conferring status as unaided minority professional college or institution.- A minority unaided professional college or institution established and maintained by any linguistic or religious minority shall be accorded recognition and conferred status of an unaided minority professional college or institution only if it satisfies all the following conditions of demographic equivalence between the minority community to which the college belongs and the non-minority community of the State taken as a single unit namely:

(a) the population of the linguistic or religious minority community in the State which runs the professional college or institution shall be lesser than fifty percent of the total population of the State.

(b) the number of professional colleges or institutions run by the linguistic or religious minority community in the State to which the college or institution belong shall be proportionately lesser than the number of professional colleges or institutions run by the non-minority community in the State.

(c) the number of students belonging to the linguistic or religious minority community to which the college or institution belongs undergoing professional education in all professional colleges or institutions in the State shall be proportionately lesser than the number of students belonging to the non-minority community in the State.  W.P.(C) No.17873/2006 etc. - 42 - As per Section 9, the fee cannot be collected excessively. Section 9 of the Act of 2006 that deals with fees and mandates that the same shall not be collected excessively reads as follows:

"9. Fees not to be collected excessively.- (1) No unaided professional college or institution shall collect any fee by whatever name called from the candidate for admission over and above the fee determined by the Fee Regulatory Committee and the fee prescribed by the University concerned; Provided that the Fee Regulatory Committee shall fix the fee for Non-Resident Indian seats and the amount so collected over and above the fee fixed for other students in the college or institution in such seats shall be utilised for providing freeship to socially and economically backward students. (2) All unaided professional colleges or institutions shall provide freeship to the extent prescribed for a minimum of fifty percent of the students admitted. (3) Any officer of the State or Central Government or any other public officer or authority who issues an income certificate which conceals the actual income of the person to whom certificate is issued and any recipient of such certificate who by making use of the certificate claims any benefit with regard to freeship or scholarship shall be liable for penalty under section 15 of the Act. (4) Notwithstanding anything contained in any other provisions of this Act,  W.P.(C) No.17873/2006 etc. - 43 - the fixation and levy of fees at the rates fixed by the Committee constituted before the date of coming into force of this Act shall be deemed to be validly fixed and collected.". Section 10 of the Act, which deals with allotment of seats reads as follows: "10.Allotment of seats.-(1) In every

professional college or institution other than a minority college -

(a) ten per cent of the total number of sanctioned seats shall be earmarked for the Scheduled Castes and Scheduled Tribes.

(b) twenty-five per cent of the total number of sanctioned seats to the Other Socially and Educationally Backward Classes;

(c) three percent of the total number of sanctioned seats shall be earmarked for physically challenged persons; and

(d) twelve per cent of the total number of sanctioned seats shall be earmarked for the other sections of society not covered under items (a), (b) and (c) of this sub-section on merit-cum-means basis. Provided that in an unaided professional college or institution, the provisions in item (c)  W.P.(C) No.17873/2006 etc. - 44 - and (d) shall apply in accordance with the consensus based on mutual agreement arrived at between the unaided professional college or institution and the Government and following such principles and in such manner as may be prescribed. Provided further that the admissions contemplated in items (b), (c) and (d) above shall be in compliance with the rules as may be prescribed. (2) In an unaided professional college or institution belonging to both minority and non-minority, up to fifteen percent of the total number of sanctioned seats may be filled by candidates under the category of Non-resident Indian seats. Seats not filled up under Non-resident Indian seats shall be filled up from general merit seats. (3) In an unaided professional college or institution belonging to both minority and non-minority community, up to fifteen per cent of the total number of sanctioned seats may be filled by candidates under the category of privilege seats in the manner as may be prescribed. Seats not filled  W.P.(C) No.17873/2006 etc. - 45 - up under privilege seats shall be filled up from general merit seats. (4) In an unaided non-minority professional college or institution eighteen per cent of the total number of sanctioned seats shall be filled up from general merit seats. (5) In an unaided non-minority professional college or institution two per cent of the total number of sanctioned seats shall be filled up by students who have made outstanding contribution in the field of culture or sports, on the basis of criteria as may be prescribed. Seats not filled up shall be filled up from general merit seats. (6) When students of specified categories surrender the seats after selection, the same shall be filled by the candidates belonging to the same category from the merit list of the Common Entrance Test. (7) Where the seats specified for the Scheduled Castes or Scheduled Tribes and other Socially and Educationally Backward Classes are left unfilled due to non-availability of candidates from the same category, the seats shall be filled up by rotation from other  W.P.(C) No.17873/2006 etc. - 46 - categories within the specified seats as may be prescribed. Provided that any spillover thereafter arising shall be filled up from the general merit seats. (8) A minority unaided professional college or institution shall admit not less than fifty per cent of the students from within the State from the minority community to which the college or institution belongs. Fifty per cent of such seats may be filled up from among the socially and economically backward sections from within the minority community on merit-cum-means basis with the consent of the minority educational college or institution as prescribed and the rest in the order of merit in accordance with inter se merit, both from he rank list prepared by the Commissioner for Entrance Examinations, based on the common application prescribed in the appropriate prospectus published by the State Government. (9) A minority unaided professional college or institution may surrender up to eighteen per cent of the seats to be filled up by the Commissioner for  W.P.(C) No.17873/2006 etc. - 47 - Entrance Examinations from the specified seats and general merit seats in equal proportion. The first portion shall be filled up on the basis of merit-cum-means basis as prescribed. The second portion shall be filled up on from the general merit seats. Any seats not surrendered shall also be treated as minority seats and filled up as such. (10) A minority unaided professional college or institution may surrender up to two per cent of the total number of sanctioned seats to be filled up by students who have made outstanding contribution in the field of culture or sports, on the basis of criteria as may be prescribed. Seats not so filled up shall be filled up from general merit seats''. Section 12 deals with higher Educational Scholarships Fund. Section 13 deals with protection of action taken in good faith, whereas Section 14 deals with the power of the Government to issue directions. Section 15 deals with penalties. Section 16 deals with cognizance of offence. Section 17 deals with the power to remove difficulties. Section 18 relates to special  W.P.(C) No.17873/2006 etc. - 48 - provisions for admissions and fixation of fee for the Academic Year 2006-07. Section 19 deals with power to make rules and as per Section 20, the Act of 2004 has been repealed. Exercising the powers under Section 19 of the Act, the Government has framed the Rules viz. Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Rules, 2006 (hereinafter referred to as 'Rules of 2006'). Rule 10 of the aforesaid Rules reads as follows:

"10. Allotment of seats:- (1) Allotment of seats in unaided professional college or institution shall be done college or institution wise. (2)In every Professional College or Institution other than a minority college or institution -

(a) The distribution of seats for Scheduled Caste and Scheduled Tribe students shall be as specified in the prospectus.

(b) Identification of candidates belonging to item (b) and (c) under sub-section (1) of section 10 shall be made in the same manner as is being followed in Government College and allotment of seats will be made in each category  W.P.(C) No.17873/2006 etc. - 49 - on the basis of inter se merit taking into account the option exercised by the students. The identification of candidates under item (c) shall be subject to the conditions contained in the prospectus.

(c) Allotment of seats to candidates under item (d) of sub-section 1 of Section 10 shall be on inter se merit and subject to the limitation that the annual income of the family does not exceed two lakhs fifty thousand rupees. (2)Every professional college or institution shall intimate their consent in writing or otherwise, for admission of candidates under item (c) and (d) of sub-section (1) of section 10, within the time limit specified for the same, by the Government. (3) In case the management does not convey their consent in writing or otherwise, within the time limit specified, it shall be deemed that consent has been duly given for treating such seats as seats under (c) and (d) above, and filled up accordingly. (4) The qualification for Non-Resident Indian students will be same as specified in the prospectus. (5) The management of each professional college or institution shall submit to the Commissioner for Entrance Examinations the list of candidates to  W.P.(C) No.17873/2006 etc. - 50 - be considered for admission under privilege seats at least three days before the date notified for the commencement of first year classes. (6) The unaided professional colleges or institutions under the Institute of Human Resources Development, unaided Colleges under the Lal Bahadur Sasthri Centre for Science and Technology, unaided Colleges under Mahatma Gandhi University, unaided Colleges under University of Kerala, unaided Colleges under University of Calicut, unaided Colleges under Center for Continuing Education shall surrender the privilege seats and admission to such surrendered seats shall be made from general merit seats. (7) Ten percent of the seats under privilege seats in the unaided College under KSRTC may be filled by children/dependents of employees in the KSRTC on the basis of inter se merit from the list prepared by the Commissioner for Entrance Examinations. A minimum of five per cent seats under the same category shall be surrendered to be filled from general merit seats. Any seat unfilled under privilege seats shall be filled from general merit seats. (8) 2% of the total number of sanctioned seats in an unaided professional college or institution shall be filled up by  W.P.(C) No.17873/2006 etc. - 51 - students who have made outstanding contribution in the field of culture and sports in the ratio of 1:1. For allotment to MBBS/BDS courses only those candidates whose rank falls within 7 fold of the total number of MBBS/BDS seats in Professional Colleges or Institutions available for allotment through the single window system will be considered. The allotment shall be done by the Commissioner for Entrance Examinations based on the following principles, namely:-

(a) allotment under seats reserved for excellence in culture shall be based on inter-se merit from among those who have obtained 'A Grade' in any item at the State Youth Festival or Higher Secondary Youth Festival conducted by the State Government.

(b) allotment under seats reserved for excellence in sports shall be based on inter se merit and in the manner specified in the prospectus. (9) All students belonging to the same religious minority community irrespective of denominational difference shall be treated as belonging to the same minority community for the purpose of allotment of minority seats. (10) Of the seats surrendered under sub-clause (9) of Section 10, fifty per cent shall be filled up from general merit  W.P.(C) No.17873/2006 etc. - 52 - seats and the rest as specified under items (a), (b),(c) and (d) of sub-section (1) of Section 10. (11) The principles of rotation specified under sub-section (7) of section 10 shall be the same as specified in the prospectus.". Freeship and its disbursement is dealt with by Rule 11, which reads as follows: "11. Freeship and its disbursement- (1) All

unaided professional colleges or institutions, including minority and non-minority colleges or institutions shall provide freeship to a minimum of 50% of the students admitted in each college, subject to the stipulations regarding income limit. Full remission will be given to all SC/ST students, irrespective of their income, whether admitted under specified category or under general merit category. 40% of the students admitted shall also be given partial remission of fee. Students other than those admitted under SC/ST, privilege seats and Non-Resident Indian seats will be eligible for the partial remission of fee on merit-cum-means basis. The fee payable by them will be the same as prevailing in Government or Aided Colleges or institutions for the same courses. Only those students whose annual family income does not exceed two lakh fifty thousand rupees and who have applied for freeship with all relevant documents to support their claim will be considered for the grant of freeship. Initially,  W.P.(C) No.17873/2006 etc. - 53 - freeship will be awarded to in the ratio of seats allotted to other socially and educationally backward classes, physically challenged and to categories other than the two above. Where adequate numbers of claimants are not available under other socially and educationally backward classes or physically challenged categories, the same shall be granted to other categories. (2) The fee payable at rates prevailing in Government/Aided colleges or institutions in respect of SC/ST students admitted under specified category will be paid to the institution concerned by the Government. The fee payable by SC/ST students admitted under general merit will be fully paid to the institution by the Government." Unaided minority professional college or institution shall be recognised and conferred such status only if it strictly conforms to all the three conditions mentioned in Section 8. Rule 13 reads as follows:

"13. Unaided Minority Professional College or Institution.-(1) A minority unaided professional college or institution established and maintained by a minority community and affiliated to a university shall be recognized as an unaided minority professional college and conferred status as such, only if it strictly conforms to all the three conditions laid down in Section 8. (2) The status of an unaided minority professional college or institution  W.P.(C) No.17873/2006 etc. - 54 - recognized as an unaided minority professional college or institution and conferred status as such, will lose such status if and when the unaided minority professional college or institution concerned ceases to fulfill any of the three conditions laid down in section 8 and thenceforth shall be treated on part with other unaided professional educational colleges or institutions.".

11. The challenge in the present petitions is to the vires of Sections 3, 4, 7(a), 8(a) and (b), 9(2), 10, 12(2), as also Rules 11 and 13. There is a multi dimensional frontal attack on the vires of the provisions referred to above. It is the case of the petitioners that the provisions of the Act and the Rules referred to above would transgress the fundamental rights of the petitioners enshrined under Articles 14, 15 [including Art.15(5)], 19, 21, 26 and 30 of the Constitution of India. It is then urged that some of the provisions of the Act and in particular Section 8

(b) and (c) pertain to an occupied field by the Central Legislation by virtue of the provisions contained in National Commission for Minorities Educational Institutions Act, 2004 as amended by the Act of 2006 and therefore, the State of Kerala would lack legislative competence to enact Act of 2006. The provisions are  W.P.(C) No.17873/2006 etc. - 55 - also stated to be in direct conflict with the various Supreme Court judgments in particular T.M.A.Pai, Islamic Academy, St.Stephen's College and Inamdar. It is then urged that inasmuch as the offending provisions of the Act are non-severable from the other provisions of the Act and further that the main sections around which the whole Act revolves are ultra vires the provisions of the Constitution, the whole Act must fall. These are the arguments which are commonly raised by learned counsel representing the petitioners in all the matters. The other arguments individually raised by the learned counsel in some of the petitions shall be mentioned at appropriate places.

12. We have heard Sri.Andyarujina, Sri.Rajeev Dhavan, learned Senior Advocates, who have led the arguments from front assisted by a galaxy of lawyers for the petitioners as also Sri.Vaidyanathan, learned Senior Advocate and Sri.C.P.Sudhakara Prasad, learned Advocate General on behalf of the State.  W.P.(C) No.17873/2006 etc. - 56 - Power of Judicial Review on recitals in the Preamble

13. Before we may examine the validity of the provisions of the Act and the Rules under challenge, it will be appropriate at the very outset to deal with the objections raised by Mr.Vaidyanathan, learned Senior Counsel representing the State along with Mr.Sudhakara Prasad, Advocate General of Kerala that recitals in the preamble to the Act are stated to be part of legislative facts and cannot be subject matter of dispute and would be beyond the purview of judicial review. For deciding the validity of a law, the statements contained in the Preamble should be presumed to be correct. If the preamble is read as a whole, it would be evident that the object and provisions of the Act fall within the four corners of the provisions of the Constitution. The same is also in tune with the decisions of the Supreme Court and in particular in Inamdar's case. That being so, the legislative facts cannot be subject matter of dispute or judicial review, thus contends the learned counsel.

14. With a view to appreciate the contention of the learned counsel, it will be appropriate to find out as to what are the recitals of the preamble of the Act of 2006 which are stated  W.P.(C) No.17873/2006 etc. - 57 - to be legislative facts thus not amenable to judicial review. The preamble contains ten unnumbered paras. Paras 1, 4, 5, 6, 7 and 8, it appear, would only contain statements of law as propounded by the Honourable Supreme Court. In so far as para 3 is concerned, the same only reproduces the provisions contained in Article 15(5) of the Constitution of India. In so far as paras 2, 9 and 10 are concerned, the same may contain a factual position.

15. Learned counsel appearing for the petitioners has sought to divide the preamble in 10 parts and while commenting on the relevant parts, it is urged by them that the Act of 2006 is a self defeating statute. With regard to part or para 1, it is urged that Supreme Court had never held so as mentioned therein. The decision rather is that there could be a consortium for the managements and further the State can take over only to ensure or achieve the twin objectives of transparency and merit in the event when the object might have been transgressed, the take over can be only a temporary measure and not for all times to come. With regard to part 2 of unnumbered para 2, it is urged  W.P.(C) No.17873/2006 etc. - 58 - that the past experience was only with regard to facts collected by Justice K.T.Thomas Committee and only once in 2004 the Committee intervened. There was no such past experience in the report of the Committee. The single instance could not be said to be a past experience of maladministration. It is further urged that one instance and that too with regard to Medical Colleges could not be treated to be such transgression that would take away the right of the management to hold the consortium test. With regard to parts or unnumbered paras 3 and 4, counsel has nothing to say. It is urged by them that they are not concerned with the said parts of the preamble. With regard to part 5 of unnumbered paragraphs thereof, it is urged that despite mentioning that the religious and linguistic minorities have to be considered Statewise, the other conditions that have been placed to qualify as religious or linguistic minority are wholly unworkable. Parts or unnumbered paragraphs 6 and 7 have been put together. Learned counsel representing the petitioners urge that the same is against the dictum of the Supreme Court. With regard to part or unnumbered para 8, it is urged that the  W.P.(C) No.17873/2006 etc. - 59 - words mentioned therein 'must equally apply to the majority institutions as well as minority institutions' is not correct. With regard to the words 'accrue from minority rights be equitably shared among different sections, including weaker sections, within the minority community to which the particular college or institution belongs' in part or unnumbered para 9 of the preamble, it is urged that it is not correct as it was not so held by the Supreme Court. With regard to part or para 10, it is urged that there cannot be any objection to the compromise mentioned therein, but the same cannot be forced. With regard to the contention of Mr.Vaidyanathan on the legal issue canvassed by him as mentioned above, it is urged by the learned counsel for the petitioners that the same is absolutely incorrect and that this court exercising its powers under Article 226 of the Constitution of India, when the challenge to Act is based upon violation of fundamental rights, can always lift the veil as the legislative declaration of facts are not beyond judicial scrutiny in the constitutional context of Articles 14 and 16 of the Constitution of India.  W.P.(C) No.17873/2006 etc. - 60 -

16. The issue debated before the Court with regard to power of judicial review under the provisions of Article 226 of the Constitution of India in the context of challenge to the provisions on the basis of violation of fundamental rights is not res integra. There will be no need to delve any further on the issue, but to straightaway refer to the judicial precedents covering the field. In Indira Sawhney v. Union of India, (2000) 1 SCC 168, while dealing with this precise issue, the Honourable Supreme Court observed that, "legislative declarations of facts are not beyond judicial scrutiny in the Constitutional context of Articles 14 and 16". The facts of the case aforesaid will reveal that provisions of Section 3 of the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services under the State) Act, 1995 was declared to be mentioning that having regard to 'known facts' in existence in the State, there are no socially advanced sections in any backward classes who may have acquired capacity to compete with forward classes and that the backward classes are not adequately represented in the services of the State. Section 3 of the said Act of 1995 in so far  W.P.(C) No.17873/2006 etc. - 61 - as would be relevant reads as follows: "It is hereby declared, having regard

to known facts in existence of the State -

(a) that there are no socially advanced sections in any Backward Classes who have acquired capacity to compete with forward classes; and (b) that the Backward Classes in the State are still not adequately represented in the services under the State and they continue to be entitled to reservation under clause (4) of Article 16 of the Constitution". For so holding, Honourable Supreme Court relied upon its earlier decision in Kesavananda Bharati v. S tate of Kerala, (1973) 4 SCC 225. In the said case, the question before the Court that arose in the context of legislative declaration made for the purpose of Article 31-C was, whether the court was precluded from lifting the veil, examine the facts and hold the legislative declaration to be invalid. The Supreme Court after making a reference to the observations made by the Honourable Judges in the said case as also relying upon judicial precedents in Charles Russel v. R, [1882 (7) AC 829] and Attorney General v. Queens Insurance Co., [1878 (3) SC 1090], held that,  W.P.(C) No.17873/2006 etc. - 62 -

"This being the legal position, this court could certainly examine whether the so called known facts referred to in Section 3 were indeed non-existent". While dealing with the precise question involved in the said case in the context of legislative declaration in Section 3 with regard to 'known facts', the Supreme Court gave six reasons categorised as (a) to (f) and came to the conclusion as follows: "It appears to us, therefore, from what

we have stated above in sub-paras (a) to (g) that Kerala Act had shut its eyes to the realities and facts and it came forward with a declaration in clause (a) of Section 3 which, perhaps, it was mistakenly believed was not amenable to judicial scrutiny. Unfortunately, the law is otherwise". It was further held that,

"In view of the facts and circumstances referred to above, we hold that the declaration in clause (a) of Section 3 made by the legislature has no factual basis in spite of the use of the words "known facts". The facts and circumstances, on the other hand, indicate to  W.P.(C) No.17873/2006 etc. - 63 - the contrary. In our opinion, the declaration is a mere cloak and is unrelated to facts in existence. The declaration in Section 3(a) is, in addition, contrary to the principles laid down by this Court in Indra Sawhney, 1992 Suppl.(3) SCC 217 and in Ashoka Kumar Thakur[1995] INSC 461; , (1995) 5 SCC 403. It is, therefore, violative of Articles 14 and 16(1) of the Constitution of India. Clause (a) of Section 3 is, therefore, declared unconstitutional.".

17. In view of the authoritative pronouncement of the Supreme Court with regard to the precise question as involved in the present case, the contention raised by Mr.Vaidyanathan, learned Senior Counsel that, recitals in the preamble to the Act are stated to be part of legislative facts and cannot be subject matter of dispute and would be beyond the purview of judicial review has to be repelled and it has to be held that court while examining the vires of the Act based upon violation of fundamental rights can tear the veil to decide the real nature of the statute if the facts and circumstances may necessitate such a course. In so far as the statement of law  W.P.(C) No.17873/2006 etc. - 64 - made in the preamble in the various paragraphs is concerned, if the same may be actually against the dictum of the Supreme Court, it shall have to be ignored. Having dealt with the proposition of law and repelling the contention of Mr.Vaidyanathan, time is now ripe to examine the factual aspect of the preamble in the context of the contentions raised before us. Learned counsel representing the petitioners contends that the same are not correct or were such that could not be taken into consideration.

18. The factual position stated in part or unnumbered para 2 of the preamble may contain facts as stated by the learned counsel appearing for the petitioners to be absolutely incorrect. It is the case of the petitioners that there was no past experience of maladministration of the entrance test conducted by the consortium/association of private professional self financing institutions of the State. In Para 75 of W.P.(C) No.17873 of 2006 which has been filed by the petitioners'  W.P.(C) No.17873/2006 etc. - 65 - institution running Nursing Courses, it is pleaded that as far as the selection process and tests conducted by the Consortium of Nursing Managements are concerned, there was no complaint of any sort from any quarters so far and there was no notice of any malpractice by the Association or any member of the Association till date. All the members of the Association had opted to go by the Test conducted by the Consortium and had effected admissions only from the said Test. In the counter affidavit filed on behalf of the State, it has been averred that necessity to insist on admission through Common Entrance Test arose as was felt by the Legislature in its wisdom that there was large scale maladministration and exploitative methods adopted by the private professional colleges. The power to admit is the root cause of capitation fee and merit being given a go-by. It is then pleaded that Justice K.T.Thomas, Chairman of the Committee for Overseeing the conduct of examinations has pointed out that the Management of Self Financing Medical, Dental, Ayurveda and Sidha colleges have violently violated the guidelines issued by the Supreme Court by conducting a rigged  W.P.(C) No.17873/2006 etc. - 66 - and farce entrance test for admitting students as if they are merit students. To substantiate its plea as mentioned above, the respondents have placed on record the proceedings of the Justice K.T.Thomas Committee as also a letter dated 21.6.2004 as Exts.R1(a) and R1(b) respectively. A letter dated 30.7.2004 was written by a student who appeared in the entrance exam conducted by the group of private colleges in 2004 complaining about the manner in which the test was conducted. A copy of the same is placed on record as Ext.R1(c). These are the kinds of averments made in all the counter affidavits pertaining to the test conducted by the Consortium of Medical Colleges or other Technical Institutions. We may mention at this stage itself that the institutions before us are imparting education in Engineering, Medicine, Ayurveda, Teaching etc. Ext.R1(a) are the proceedings of the Committee for Supervision of Common Entrance Test for selection of students in the management seats in the Private Self Financing Professional Colleges dated 3rd June, 2004. It deals with Medical, Dental, Ayurveda and Siddha Colleges. In paragraph 2 of the proceedings aforesaid, it has been mentioned  W.P.(C) No.17873/2006 etc. - 67 - that the Committee had noticed that Association of Private Self Financing Institutions received applications for appearing in the Common Entrance Test to be conducted by them on the strength of prospectus which has shown the fee structure proposed by each member of the association which was far higher than the fees fixed by the Committee. The last date fixed by the association for receipt of application was long prior to the date when the Committee decided the fee payable by the students. As per the decision of the Committee, the fee which a student has to pay in respect of each course is far less than the fee proposed by each College shown in the prospectus. When the fee structure was published, a large number of students who felt that they could afford to pay the fee fixed by the Committee made earnest efforts to apply in the colleges concerned but the Association forestalled the rights and opportunity of such students to make the application on the premise that last date for making the application was already over. The Committee on the aforesaid facts understood that the number of applications received by the Association on the basis of prospectus issued  W.P.(C) No.17873/2006 etc. - 68 - was abysmally small and this fact itself would prove that only a handful of students who could afford to pay the exorbitant fee shown in the prospectus fixed by the Association could make the application. This, according to the Committee, was in contrast to the number of applications received by the Commissioner for Entrance Examinations. The Committee was of the view that there was no doubt that if the last date for receipt of application has been fixed giving a reasonable interval from the date of fixation of fee, the number of applicants should have been far higher than the small number now admitted by the management. After discussing the matter in detail the Committee resolved as follows: "i. The Association shall postpone the last

date for receipt of application atleast till 20.06.2004. ii. Sufficient number of application forms should be made available at the office of the Committee also for issuing to the intending applicants and the cost of the forms issued will be passed over to the Association. iii. The other dates for holding the entrance test shall be rescheduled accordingly in such a way as to keep the last date for admission  W.P.(C) No.17873/2006 etc. - 69 - specified by the MCI, pursuant to the Judgement of the Supreme Court in MCI v. Madhu Sing case. iv. In the event of the Association being unable to conduct the entrance test in the manner specified above, the Association shall follow the rank list published by the State agencies after fixing up another date as the last date for receiving application.". In the proceedings dated 3.6.2004, the Committee has directed the Association of Managements of the Self Financing Medical Colleges to extend the last date for receipt of applications by a few more days, so as to enable the intending students to apply. In the letter dated 21.6.2004, produced as Ext.R1 (b), it is stated that the Chairman of the Association of Private Self Financing Medical College filed a writ petition praying for stay of operation of implementation of the order dated 3.6.2004 of the Committee and when the High Court refused to grant stay of the order, the Association in a hurry prepared the question paper and a farce test was conducted on 13.6.2004, as announced by them already. It was observed that the Association should not have flouted the direction of the Committee which was necessary  W.P.(C) No.17873/2006 etc. - 70 - for supervising the test and also to oversee that the admissions are fair and transparent. It was further observed that denying the opportunity to the students to apply for admission after the fees was fixed by the Committee is a very grave violation of fairness and transparency. Complaints have been received by the committee that some of the Medical colleges have collected huge amounts from some of the applicants by assuring admission to them and that is the reason for preventing others to make application. Though the committee has no direct evidence on the truth of such allegations, the committee has been convinced that transparency became a casualty when the managements blocked the student community from applying for admission after knowing the range of fees. The Committee then observed that management of Self Financing Medical, Dental, Ayurveda and Siddha Colleges have violently violated the guidelines issued by the Supreme Court by conducting such a rigged and farce entrance test for admitting students as if they are merit students. The Committee also found that the test conducted by the Medical Institutions on 13.6.2004 was wholly  W.P.(C) No.17873/2006 etc. - 71 - unfair, wherein fairness and transparency have become casualties. A letter dated 30.7.2004 [Ext.R1(d)], has been addressed by one Anu.S. to Justice K.T.Thomas. It is a letter by a student who appeared for the entrance examination conducted on 13.6.2004 by the Self Finance College Association. It is stated in the letter that even though the Committee headed by Justice K.T.Thomas had objected to the conduct of the examination, she had participated in the examination. The Self Financing Colleges have admitted students of their choice in the management quota. In many of the colleges, the classes have started in between, but she and others were not included even in the selection process. She had passed CBSE examination with 91.7% marks in Biology, Physics and Chemistry and performed well in the examination conducted by the Association, but neither the examination results were declared nor she was called for an interview. She requested the Committee to help ordinary people like her either by cancelling the entrance examination conducted by the Association or by selecting the students in a transparent manner.  W.P.(C) No.17873/2006 etc. - 72 -

19. It is the case of the petitioners that in so far as the Committee headed by the former Judge of the Supreme Court, Mr.Justice K.T.Thomas, is concerned, there was no allegation with regard to fairness in the test. Unfairness in the test was presumed on the ground that prospectus was issued by Self Financing Institutions far prior to fixation of fees by the Committee and inasmuch as the fee fixed in the prospectus was far higher than the one fixed by the Committee later in point of time, many students were debarred from participating in the test conducted by the Self Financing Institutions. This, according to the Committee, had resulted into a test which was a complete farce. In so far as the letter written by a student is concerned, it is urged by the learned counsel for the petitioners that, no material has been placed on record to substantiate the allegations made therein. The contents of the letter are in the realm of allegation without any proof, thus would contend the learned counsel.

20. It may not be possible to accept the contentions of the learned counsel as noted above. The findings recorded by  W.P.(C) No.17873/2006 etc. - 73 - the Committee headed by Justice K.T.Thomas may be presumptive with regard to standard of the test, but, surely, number of students could not participate. Further, there are indeed other findings also like holding the test on a day and announcing the result the very next day which point towards the test not being fair. The declaration of facts made in unnumbered para 2 of the preamble may be true, but the significant question that arises in the present cases is as to whether on the basis of a single test, authenticity of which was adversely commented upon by the Committee headed by a former Judge of the Supreme

Court, Justice K.T.Thomas, and which test was conducted only by

21. Having examined the backdrop of events culminating into the filing of the present petitions and the important dates and events which may have a bearing upon the controversy in issue, we would have normally examined at this stage the challenge to various provisions of the Act and the Rules referred to above, but inasmuch as the learned counsel appearing for the parties have primarily relied upon the  W.P.(C) No.17873/2006 etc. - 77 - judgments of the Supreme Court in St.Xavier's case, St.Stephen's case, T.M.A.Pai Foundation case and P.A.Inamdar's case and claimed that the said judicial precedents support their view points, it shall be necessary to first take into consideration the background in which the said cases came to be instituted, the basic points involved therein and the results thereof. This exercise has to be gone into as both parties rely upon the same very judgments in their favour and unless the context in which the said cases came to be decided is clear, a sure answer may not be possible.

22. The litigation on education can be mainly divided into two eras, namely, one, post Unnikrishnan and the other post T.M.A.Pai Foundation, clarified by the Supreme Court in Inamdar's case. In Mohini Jain v. State of Karnataka, [1992] INSC 184; 1992 (3) SCC 666 (hereinafter referred to as Mohini Jain's case), the challenge was to notification that provided for fee structure whereby for Government seats the tuition fee was Rs.2000/- per annum, and for students from Karnataka the fee was Rs.25,000/- per annum while the fee for Indian students from  W.P.(C) No.17873/2006 etc. - 78 - outside Karnataka, under the payment category was Rs.60,000/- per annum. It was urged before the Supreme Court that charging such a discriminatory and high fee would violate the constitutional guarantees and rights. This attack was sustained and it was held that there was fundamental right to education in every citizen, and that the State was duty bound to provide education as also the private institutions that discharge State's duties were equally bound not to charge a higher fee than the Government institutions. The correctness of the same was challenged in Unnikrishnan's case where it was urged that if the law laid down in Mohini Jain's ratio was to apply, the educational institutions would have to be closed down as they would be unable to run the institutions with a kind of fee structure ordained in the said case. The Supreme Court in the context of arguments raised in the said case considered the conditions and regulations, if any which the State could impose on private unaided/aided, recognised or affiliated educational institutions conducting professional courses, the extent of fee which could be charged by such an institution and the manner in which the  W.P.(C) No.17873/2006 etc. - 79 - admissions could be granted. It was held that private unaided recognised/affiliated educational institutions running professional courses were entitled to charge a fee higher than that charged by Government institutions for similar courses, but such a fee should not exceed the maximum limit fixed by the State. It was also held that commercialisation of education was not permissible, the same would be opposed to public policy, and charging of capitation fee was held to be illegal. The court upheld the power of the Government to frame rules and regulations in matter of admission and fees with regard to private aided recognised/affiliated educational institutions. The question as to whether the setting up of an educational institution would be a fundamental right under Article 19(1)(g) was not answered. It was further held that a citizen who had not completed the age of 14 years would have the right of free education which would not be available to him beyond the age of 14 years. The private educational institutions were held to be supplementing the efforts of the State in educating the people. The authorities were obliged to recognise and/or affiliate such  W.P.(C) No.17873/2006 etc. - 80 - institutions, but could insist upon such conditions as would be appropriate to ensure not only an education of requisite standard but also fairness and equal treatment in matters of admission of students. The court then formulated a scheme and directed every authority granting recognition and/or affiliation to impose that scheme upon institutions seeking recognition/affiliation, even if they were unaided institutions. The scheme postulated that professional colleges should be established and/or administered only by a Society under the Society Registration Act, 1860, or corresponding Act of a State, or by a Public Trust registered under the Trusts Act or under the Wakfs Act and that no individual, firm, company or other body of individuals would be permitted to establish and/or administer a professional college; that 50% of seats in every professional college should be filled by the nominees of the Government or university, selected on the basis of merit determined by a common entrance examination, referred to as free seats, whereas the remaining 50% of seats (payment seats) should be filled by those candidates who pay the fee prescribed therefor  W.P.(C) No.17873/2006 etc. - 81 - and allotment of seats against payment seats should be done on the basis of inter se merit determined on the same basis as in the case of free seats; that there should be no quota reserved for management or for any family, caste or community, which may have established such a College; that it should be open to the professional colleges to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating university; that the fee chargeable in each professional college should be subject to a ceiling as may be prescribed by the appropriate authority or by a competent Court; that every State Government should constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The committee so constituted should fix the fee once in every three years or at such longer intervals as it may think appropriate and that it would be appropriate for the University Grants Commission to frame regulations under its Act regulating the fees that could be charged by the affiliated colleges operating on a no-grant-in-aid basis. The AICTE , the Indian Medical Council and the Central  W.P.(C) No.17873/2006 etc. - 82 - Government were also given similar advice. This is the scheme which can be called as a scheme in the era of post Unnikrishnan's case and which held the field for ten years.

23. In T.M.A.Pai Foundation, the scheme as formulated in Unnikrishnan's case was challenged. It was the case of petitioners therein that cost incurred on educating a student in an unaided professional college was more than the total fee which was realised at on the basis of the formula fixed in the scheme. This had resulted in revenue shortfalls. It was further represented that even though by interim orders some percentage of seats to be alloted to NRI students against payment of higher amount was permitted, that even then sufficient funds were not available for development of educational institutions. Another anomaly of free seats bagged by students from affluent families, whereas students from poor family were required to pay, were also highlighted. The implementation of Unnikrishnan scheme it was urged, has helped the privileged from richer urban families, even after they ceased to be comparatively less meritorious and the same has also  W.P.(C) No.17873/2006 etc. - 83 - resulted in economic loss for the educational institutions. The scheme framed under Unnikrishnan's case with regard to affiliation and recognition subject to fulfilment of conditions imposed by the concerned authorities was also challenged. The nationalisation of education again formulated in the scheme under Unnikrishnan's case was also challenged. It was urged that the right of private unaided educational institutions to give admissions and fix fee was curtailed by the State Governments legislating in conformity with the scheme was neither fair nor reasonable. The institutions clamoured for their right in admitting students particularly in private unaided institutions subject to minimum qualifications that may be prescribed and to some system of computing the equivalence between different kinds of qualifications like a common entrance test. Surrendering the total process of selection to the State was labelled as unreasonable. The Government's regulations in the private institutions were also under challenge. The private unaided non-minority educational institutions also clamoured for their right for fixation of fee, admission of students and  W.P.(C) No.17873/2006 etc. - 84 - non-interference in these matters by the State or other authorities. In the context of all pervasive and all embracing attack on the scheme formulated in Unnikrishnan's case, the Supreme Court in T.M.A. Pai Foundation case framed under five heads eleven questions. The five headings under which discussions on the eleven questions were classified read as follows:

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

2. Does Unni Krishnan case require reconsideration?

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

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

5. To what extent can the rights of aided private minority institutions to administer be regulated?". In so far as the eleven questions with answers that may be relevant for determination of controversy in the present case are concerned, the same reads as follows:  W.P.(C) No.17873/2006 etc. - 85 - "Q.1. What is the meaning and content of the

expression 'minorities' in Article 30 of the Constitution of India? A. Linguistic and religious minorities are covered by the expression minority under Article 30 of the Constitution. Since re-organisation of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered Statewise. Q.3(b).To what extent can professional education be treated as a matter coming under minorities' rights under Article 30? A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words 'of their choice' indicates that even professional educational institutions would be covered by Article 30. Q.4. Whether the admission of students to minority educational institutions, whether aided or  W.P.(C) No.17873/2006 etc. - 86 - unaided, can be regulated by the State Government or by the University to which the institution is affiliated? A. Admission of students to unaided minority educational institutions viz schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institution of their choice, as contemplated under Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is  W.P.(C) No.17873/2006 etc. - 87 - more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment the grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens' right under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observation of inter se merit amongst the applicants belonging to minority group could be ensured. In the case of aided professional institutions, it can also be  W.P.(C) No.17873/2006 etc. - 88 - stipulated that passing of the common entrance test held by the State agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists. Q.5(a). Whether the minorities' right to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent and selection of students in professional and higher educational colleges should be on the basis of merit. The procedure adopted and selection made should not tantamount to maladministration. Even an unaided minority institution ought not to ignore merit of the students for admission, while exercising its right to admit students to the colleges  W.P.(C) No.17873/2006 etc. - 89 - aforesaid, as in that event, the institution will fail to achieve excellence. Q5(b). When the minority institutions' right of admission of students and to lay down procedure and method of admission, if any would be affected in any way by the receipt of State aid? A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the University or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case  W.P.(C) No.17873/2006 etc. - 90 - of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the Society. Q.8. Whether the ratio laid down by this Court in St.Stephen's case (St.Stephen's College v. University of Delhi) is correct? If no, what order? A. The basic ratio laid down by this Court in St.Stephen's College case is correct, as indicated in this judgment. However, a rigid percentage cannot be stipulated. It has to be left to the authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities. Q.9. Whether the decision of this Court in Unni Krishnan J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder requires reconsideration/ modification and if yes, what? A. The scheme framed by this Court in Unni Krishnan case and the direction to impose the same, except where it holds that  W.P.(C) No.17873/2006 etc. - 91 - primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. Q.10. Whether the non-minorities have the right to establish and administer educational institution under Article 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions? and Q.11. What is the meaning of the expressions 'education' and 'educational institutions' in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution? A. The expression 'education' in the articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level. It include professional education. The expression 'educational institutions' means  W.P.(C) No.17873/2006 etc. - 92 - institutions that impart education, where 'education' is understood hereinabove. The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Article 19(1)(g) and 26, but this right is subject to the provisions of Article 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment".

24. Even though one of the ever largest Bench of 11 Honourable Judges was constituted which as observed in P.A.Inamdar's case was expected to draw a final curtain, subsequent events tell a different story. Some of the questions it was observed had remained unsettled whereas some aspects required clarification and it is this exercise which was taken by the Bench consisting of 7 Honourable Judges in Inamdar's case. After the decision in Pai Foundation, however, another judgment  W.P.(C) No.17873/2006 etc. - 93 - in Islamic Academy of Education was delivered by the Supreme Court consisting of 5 Honourable Judges, which was the first attempt to clarify the judgment of Supreme Court in Pai Foundation case. The Pai Foundation judgment as mentioned above gave rise to further litigations, both Government and Managements of Institutions endeavouring to interpret the said judgment in their favour. The Government too in the wake of law laid down in T.M.A.Pai enacted laws as per the law understood by it. That too was also an added reason for litigation in post T.M.A.Pai era. When interim orders passed by various High Courts were challenged, counsel appearing for the parties agreed that there were certain anomalies and doubts in T.M.A.Pai's decision, which require clarification. This clarification was sought primarily by unaided professional institutions, both minority and majority. In Islamic Academy of Education case, thus on the issues that required clarification, four questions were framed, which read as follows:

"1. Whether the educational institutions are entitled to fix their own fee structure?

2. Whether minority and non-minority  W.P.(C) No.17873/2006 etc. - 94 - educational institutions stand on the same footing and have the same rights?

3. Whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent? and

4. Whether private unaided professional colleges are entitled to admit students by evolving their own method of admission?". The Constitution Bench in Inamdar's case attempted to formulate the gist of answers to the four questions as given by the Constitution Bench in Islamic Academy of Education and as understood by it. On the first question as mentioned above, the Bench in Inamdar case observed that each minority institution is entitled to have its own fee structure, subject to the condition that there can be no profiteering and, capitation fee cannot be charged. A provision for reasonable surplus should be made. The relevant factors that should be taken into consideration for fee structure would be infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, and future plans for expansion and betterment of the institution. The answer to question No.2 was summed up by observing that minority institutions stand on a better footing than non-minority  W.P.(C) No.17873/2006 etc. - 95 - institutions. Minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice. State legislation, primary or delegated, cannot favour non-minority institutions over minority institutions. The difference was referable to Article 30 of the Constitution. The questions 3 and 4 reproduced above were taken together for answer and it was observed that in professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in professions is in the national interest, and that without interfering with the autonomy of unaided institutions, the object of merit-based admissions can be secured by insisting on it as a condition to the grant of recognition as also that management can have quota for admitting students at its discretion but subject to satisfying the test of merit based admissions. The management could pick up students of their choice but the same had to be out of those who have passed the common entrance test conducted by a centralised mechanism. It was further observed that State can provide for reservation in  W.P.(C) No.17873/2006 etc. - 96 - favour of financially or socially backward sections of the society and that prescription of percentage of seats, i.e. allotment of different quotas has to be done by the State in accordance with the local needs and interests/needs of that minority community in the State. The plea that each minority unaided educational institution can hold its own admission test was expressly overruled.

25. In the context of backdrop of controversies solved or unsolved, obscure or otherwise, it was observed in Inamdar's case that the task of the Bench would be not to pronounce their own independent opinions which were also considered in Pai Foundation as even if the Bench was to disagree with the findings recorded therein, it could not be done as the pronouncement of 11 Judges was binding upon them. The real task before the seven Member Bench was to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to the decision in Pai Foundation, and if so, to what extent. It was also observed that if the Bench was to find anything said or held in Islamic  W.P.(C) No.17873/2006 etc. - 97 - Academy which may be in conflict with Pai Foundation, it will be said as being a departure from the law as laid down by Pai Foundation and on the principle of binding efficacy of precedents, overrule to that extent the opinion of Constitution Bench in Islamic Academy case.

26. The direction made in Islamic Academy of Education case for appointment of Committee was under severe challenge in Inamdar's case in the context of there being no absolute clarity in law laid down in T.M.A.Pai and further clarifications as has been made in Islamic Academy case, which too were under challenge, in the reference constituting a Bench higher than that of Islamic Academy of Education case, the issues which arose for the decision were as follows: "(i). The fixation of quota of

admission/students in respect of unaided professional institutions. (ii). The holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and (iii) the fee structure". Spelled out from the two orders of reference, the Supreme Court  W.P.(C) No.17873/2006 etc. - 98 - in Inamdar's case confined its discussion to the following four questions.

"(1)To what extent can the State regulate admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions? (2) Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether the direction made in Islamic Academy for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation? (3) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by students to the educational institutions? (4) Can the admission procedure and free structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy?". The four questions as referred to above were referable to Headings 3 and 5 and to questions 3(b), 4, 5(a), 5(b), 5(c) and 9 as framed in Pai Foundation case. It would be thus clear that  W.P.(C) No.17873/2006 etc. - 99 - clarification was to be done with regard to Headings and questions as mentioned above and that too in the context of clarification said to have been made in Islamic Academy of Education case. It was urged by the counsel representing the Managements that directions for setting up permanent committee for regulating admissions and fixing fee structure in unaided minority and non-minority institutions issued in the case of Islamic Academy were contrary to the ratio of judgment in Pai Foundation. The said direction clearly runs counter to all earlier Constitution Bench decisions in St.Stephen's, St.Xavier's and Kerala Education Bill case. A pertinent reference to para 68 of the decision in Pai Foundation was made and it was urged that in Islamic Academy case the said para has been wrongly read as ratio of the judgment by the Bench of five Judges in Islamic Academy. The directions for setting up of permanent Committees, for fixing quota and fee structure seriously impinge on the Constitutional guarantee of autonomy to minority institutions under Article 30 and to unaided non-minority institutions under Article 19(1)(g) was further the contention of  W.P.(C) No.17873/2006 etc. - 100 - the counsel representing the Managements. Yet another point pertinently argued was that taking over the right to regulate admissions and fee structure of unaided institutions was not a reasonable restriction within the meaning of regulations under Article 19(6) of the Constitution. It was also urged that State could prevent maladministration, but while doing so the State could not take over the administration of the institutions themselves into their own hands on the ground that there is likelihood of such maladministration, as likelihood of an abuse of a constitutional right cannot ever furnish justification for denial of that right. An apprehension that a citizen may abuse his liberty does not provide justification for imposing restraints on the liberty of citizens.

27. Learned counsel appearing for the parties as mentioned above have based their arguments almost exclusively on the observations made in the three decisions mentioned above, but we may mention that reading of a particular para or a stray sentence without reference to the context in which it came about would not lead to a correct decision. The Supreme Court  W.P.(C) No.17873/2006 etc. - 101 - in Inamdar's case also observed that, "it is dangerous to take one or two observations out of a long judgment and to treat the same as if they give the ratio decidendi of the said case".

28. Having taken into consideration the reference and context in which the three important decisions mentioned above came to be rendered by the Supreme Court, the points involved herein and the clarification of points made in T.M.A.Pai case in particular, time is now ripe to examine the constitutional validity of the provisions of the Act of 2006 as also the Rules, under challenge. The right to establish and/or administer an educational institution would broadly comprises the right to admit students, to set up a reasonable fee structure, to constitute a governing body, to take action if there is dereliction of duty on the part of any employee and the State control to provide for quotas. The last part of the administration as mentioned above would primarily apply in the case of unaided institutions, minority or non-minority. Whereas there is indeed a discussion and law laid down with regard to all the rights covered under establishing and administering an educational institution,  W.P.(C) No.17873/2006 etc. - 102 - there may not be much discussion with regard to the indicia for treating an educational institution as a minority institution. This aspect shall have to be considered for the first time in this case. Broadly speaking, the controversy in the present petition can be on the rights of managements pertaining to autonomy in the matter of admission of students, the extent of regulations to monitor admissions, autonomy in the matter of fixation of fee and the extent of regulations by which it can be controlled, the autonomy and freeship, autonomy and quotas, and autonomy and committees. In addition to these rights to administer the educational institutions, the other question is with regard to conditions placed on the minorities to exercise their right as a minority. We will first deal with autonomy in admission, permissibility of regulations to control admissions and the extent thereof. Admission procedure and State control:

29. The provisions relating to admission in the Act of 2006 would require to be noticed first in that connection. As per Section 2(a), the Admission Supervisory Committee is defined to  W.P.(C) No.17873/2006 etc. - 103 - mean the Committee constituted under Section 4 for regulating admission in the unaided professional colleges or institutions. By virtue of sub-section (6) of Section 4 the Admission Supervisory Committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a view to ensure that the process is fair, transparent, merit-based and non-exploitative. The Admission Supervisory Committee may hear complaints with regard to admission and shall make appropriate recommendation to the Government for imposing a fine up to rupees ten lakhs if there is violation of the provisions of the Act, as per sub-section (7) of Section 4. The Admission Supervisory Committee can also recommend to the University or statutory body for withdrawal of the affiliation or recognition if unaided professional colleges or institutions may violate any of the provisions of the Act. Common Entrance Test means the entrance test conducted for determination of merit of the candidates followed by centralised counselling for the purpose of merit based admission to professional colleges or institutions through a single window  W.P.(C) No.17873/2006 etc. - 104 - procedure by the State Commissioner for Entrance Examinations. Single Window System as per Section 2(t) means the centralized system for admission administered by the State Commissioner for Entrance Examinations to professional courses in both aided and unaided, minority and non-minority colleges or institutions. The method of admission in professional colleges or institutions as prescribed by Section 3 is to be made through Common Entrance Test conducted by the State followed by centralised counselling through a single window system in the order of merit by the State Commissioner for Entrance Examinations in accordance with such procedure which may be specified by the Government from time to time. The procedure shall be, as mentioned above, notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court or any other authority. The Common Entrance Test is the test conducted only by the State Commissioner for Entrance Examination through the single window procedure and as mentioned above, Single Window System means centralised system for admission administered by  W.P.(C) No.17873/2006 etc. - 105 - the State Commissioner for Professional Courses in both aided and unaided, minority and non-minority colleges or institutions. It is absolutely apparent and so is the case of the State as well that the admission to all professional institutions, be it, aided or unaided, minority or non-minority, would be governed by the common entrance test to be held by the State. Is this permissible in the context of fundamental rights of the institutions to administer the educational institutions under Article 19(1)(g) as recognised and so declared in T.M.A.Pai case is the question. The method of admission as provided in Section 3, surely and admittedly, takes away the right of admission by the institutions. It is the procedure prescribed in Section 3 which is to be followed notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court or any other authority. By making use of the non-obstante clause in Section 3, the State would urge that even though the minority or non-minority institutions may have a right to admit students by a test conducted by them, and such be the law as laid down by the  W.P.(C) No.17873/2006 etc. - 106 - decisions of the Supreme Court, the State could completely take over admission on the basis of non-obstante clause. However, Mr.Vaidyanathan would not go to that extent and would rather urge that the procedure prescribed in Section 3, even of taking over the admission completely is justified by the decisions of the Supreme Court and in particular, Inamdar's case. The right with the State will be more pronounced if the test held by the consortium of private self financing institutions lacks merit, transparency and fairness. The right of the institutions would be forfeited in that case even though the same is available otherwise under Article 19(1)(g) and Article 30(1) of the Constitution.

30. Even though the State has taken the stand that, entire process of admission has been taken over by the State as per the law laid down in T.M.A.Pai, Islamic Academy and Inamdar, and that it would not press into service the non-obstante clause in Section 3, we may mention that the law declared by the Supreme Court cannot be nullified by a non-obstante clause as found mentioned in the beginning of  W.P.(C) No.17873/2006 etc. - 107 - Section 3. In People's Union for Civil Liberties v. Union of India and another, (2003) 2 SCC 399, culled out from its earlier decision in Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96, Municipal Corporation of the City of Ahmedabad v. Sew Shrock Spinning and Weaving Company Ltd. [1970] INSC 95; (1970) 2 SCC 280 and Mahal Chand Sethia v. State of W.B. 1969 UJ (SC) 616, it was held thus: ".....the Legislature can change the basis

on which a decision is rendered by this Court and thus change the law in general. However, the power can be exercised subject to constitutional provision, particularly, legislative competence and if it is violative of fundamental rights enshrined in Part III of the Constitution, such law would be void as provided under Article 13 of the Constitution. The legislature also cannot declare any decision of a court of law to be void or of no effect." The fundamental right guaranteed to an institution to carry on occupation of running an educational institution under Article 19(1)(g) is not in dispute. This was so specifically held by the Supreme Court in T.M.A.Pai's case. The minority unaided institutions too have fundamental right under Article 30(1) of the  W.P.(C) No.17873/2006 etc. - 108 - Constitution to run educational institutions is also not in dispute. The discordant view pertains only to right or jurisdiction of the State or authorities to completely take over admission of students; whereas counsel for the petitioners would vehemently contend that the right granted to the minority or non-minority to run the institution under Articles 19(1)(g) and 30(1) of the Constitution, can at the most be regulated and the regulations can also be only with regard to the triple test of fair, transparent and non-exploitative method or procedure of admission, Mr.Vaidyanathan learned Senior Counsel appearing for the State with equal vehemence would contend that such a right can be completely taken over by the State by framing regulations, particularly when the institutions may indulge in maladministration, thus crucifying merit.

31. The Unnikrishnan's case upheld the power of the Government to frame rules and regulations in the matter of admission with regard to private aided recognised/affiliated educational institutions. In the scheme so formulated, it was permissible for every authority granting recognition or affiliation  W.P.(C) No.17873/2006 etc. - 109 - to impose the scheme upon institutions seeking recognition/affiliation, even if they were unaided institutions and 50% of seats in every professional college should be filled by the nominees of the Government or university, selected on the basis of merit determined by a common entrance examination. In T.M.A. Pai's case, the scheme as formulated in Unnikrishnan was under severe challenge. The scheme with regard to affiliation or recognition subject to fulfilment of conditions imposed by the concerned authorities was also under challenge. The institutions had claimed right for admitting students particularly in private unaided institutions subject to minimum qualification prescribed. Surrendering of total process of selection to the State was styled as unreasonable. Out of five headings relating to 11 questions, headings 2, 3 and 5 and out of the eleven questions, questions 4, 5(a), 5(b) and 9 were related to autonomy in the matter of admission and the extent of law by which it can be regulated. Question No.4 relating to admission alone that pertains to minority educational institutions, whether aided or unaided, was answered by observing that in so far as admission of students to  W.P.(C) No.17873/2006 etc. - 110 - unaided minority educational institutions viz schools and undergraduate colleges are concerned, the scope for merit-based selection is practically nil. The admission in such institutions cannot be regulated except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right of minority educational institutions to admit students is an essential facet of the right to administer educational institution of their choice, as contemplated under Article 30 of the Constitution. It was specifically held that the State Government or the University may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions was on a transparent basis and the merit was adequately taken care of. Thus there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, which will be more so with regard to admissions to professional institutions. The minority institutions do not cease to be so, the moment the grant-in-aid is received by the institution. It was held to be having the same right as an unaided minority institution with the exception that it may be  W.P.(C) No.17873/2006 etc. - 111 - required to admit a reasonable extent of non-minority students. The reasonable extent was to vary from the types of institution, the courses of education for which admission is sought and various other factors like educational needs, etc. It is only in the case of aided professional institutions that stipulations of passing of the common entrance test held by the State agency could be insisted upon. Under Question 5 (a) pertaining to the minorities' right to establish and administer educational institutions of their choice to include in the said right, the procedure and method of admission and selection of students, it was held that minority institution can have its own procedure and method of admission as well as selection of students, but such procedure should be fair and transparent and selection of students in professional and higher educational colleges should be on the basis of merit. The procedure should not tantamount to maladministration. Even an unaided minority institution should not ignore merit of the students for admission, while exercising its right to admit students to the colleges. Under Question No.5(b) pertaining to the right of minority institutions  W.P.(C) No.17873/2006 etc. - 112 - to admit students and the procedure and method of admission, in the context when it was receiving any State aid, it was held that it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. Under Question No.9, the scheme in Unni Krishnan's case except where it holds that primary education is a fundamental right was held to be unconstitutional. The principle that there should not be capitation fee or profiteering was, however, held to be correct. In paragraph 56 of the decision in T.M.A.Pai's case, the Supreme Court held thus:

"An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose  W.P.(C) No.17873/2006 etc. - 113 - sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government". The system of student selection if it was to deprive the private educational institution the right of rational selection was held to be unreasonable. In para 40 it was observed as follows: "Any system of student selection would be

 W.P.(C) No.17873/2006 etc. - 114 - unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness". The educational institutions, it was further held, would have the right to chose and select students who can be admitted to the course of studies. The observation made to that effect in paragraph 65 reads as follows:

"The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that St.Stephen's College case this Court upheld the scheme whereby a cut off  W.P.(C) No.17873/2006 etc. - 115 - percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.". In Islamic Academy of Education case, however, question No.4 reproduced in the earlier part of the judgment pertaining to right  W.P.(C) No.17873/2006 etc. - 116 - of unaided professional colleges to admit students by evolving their own method of admission, it was held, as culled out by the Honourable Supreme Court in Inamdar's case under questions 3 and 4 that in professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed as excellence in professions is in the national interest and without interfering with the autonomy of unaided institutions, the object of merit based admissions can be secured by insisting on it as a condition to the grant of recognition as also that management can have quota for admitting students at its discretion, but subject to satisfying the test of merit based admissions. It was further held that the management could pick up students of their choice, but the same had to be from those who have passed the common entrance test conducted by a centralised mechanism. There thus appear to be some deviation of law with regard to right of institutions to have its procedure for admission of students in Islamic Academy case, but it may be recalled that the findings recorded in Islamic Academy were under severe criticism before  W.P.(C) No.17873/2006 etc. - 117 - the Supreme Court in Inamdar's case. It is for that reason that it appears the Supreme Court framed four questions for determination which pertain to right of admission and the extent to which the State could regulate the admission. These questions as mentioned above were referable to Heading 3 and 5 and to questions 3(b), 4, 5(a), 5(b), 5(c) and 9 as framed in Pai Foundation case. Question No.2 that pertains to admission procedure of unaided educational institutions formulated in Inamdar was answered in Paras 136 and 137 by observing as follows: "Whether minority or non-minority

institutions, there may be more than one similarly situated institutions 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 there may be a clash of dates. If the same candidate is required to appear in several tests, he would be  W.P.(C) No.17873/2006 etc. - 118 - 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 itself or through an agency arrange for holding of such test. (emphasis supplied). Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance followed by centralised counselling or, in other words, single window  W.P.(C) No.17873/2006 etc. - 119 - system regulating admission does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen. 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 therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be single institution imparting a peculiar type of education which is not being imparted by any other institution 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 triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and  W.P.(C) No.17873/2006 etc. - 120 - merit-based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken by the State substituting its own procedure. (emphasis supplied). The second question is answered accordingly.". It is crystal clear from the observations made by the Honourable Supreme Court as reproduced above that minority unaided institutions have unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. This according to the Constitution Bench in Inamdar case is the law laid down in T.M.A.Pai Foundation case, which could not be dissented from as observed in Inamdar's case itself. Mr.Vaidyanathan has also relied upon paras 136 and 137. His emphasis is on two sentences, one each in paras 136 and 137, on which we have supplied emphasis. Reliance has also been placed by Mr.Vaidyanathan upon the observation in para 155,  W.P.(C) No.17873/2006 etc. - 121 - which reads as follows:

"It is for the Central Government, or for the State Governments, in the absence a Central legislation, to come out with a detailed well-thought out legislation on the subject. Such a legislation is long awaited. The States must act towards this direction. The judicial wing of the State is called upon to act when the other two wings, the legislature and the executive, do not act. The earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made hereinabove (emphasis supplied)".

32. We have given our thoughtful consideration to the question under debate and are of the view that the law laid down by 11 member Bench in T.M.A.Pai case gives unfettered fundamental right to minority unaided institutions to choose  W.P.(C) No.17873/2006 etc. - 122 - students for admission. It also gives the right to choose the procedure, but the same is subject to fair, transparent and non-exploitative procedure. The law laid down to the contrary in Unnikrishnan case has been specifically overruled in T.M.A.Pai case, which has been reiterated or clarified in Inamdar's case. The contention of Mr.Vaidyanathan if accepted would lead to reverting to the scheme in Unnikrishnan case, which has been held to be unconstitutional. It is simply not permissible. The two sentences emphasised by Mr.Vaidyanathan are being pressed into service losing their reference and context. Para 136 starts with the factual position, when there may be more than one similarly situated institutions, whether minority or non- minority and the aspirant seeking admission facing difficulty in taking various examinations. It is in that context that it has been observed that, if the candidate is required to appear in several tests, he would be subjected to unnecessary and unavoidable expenditure and inconvenience. It is further in that context that it was observed that, there was nothing wrong in an entrance test being held for one group of institutions imparting  W.P.(C) No.17873/2006 etc. - 123 - same or similar education and 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 test (emphasis supplied). In the first part of the sentence referred to above, the decision to hold such test for one group of institutions whether situated in one State or in more than one State by joining together, the reference is to the common entrance test to be conducted by the institutions. It is in the alternative that it has been said that the State may itself or through an agency arrange for holding of such test. The words "such tests" necessarily means a test on behalf of the institutions. This further necessarily means a test which would be otherwise conducted by the institutions and it would also certainly mean the test which shall not be a common entrance test conducted by the State for all the students in the State for all the institutions in the State. Section 3, is a complete take over of the admission procedure thus completely annihilating the right of the institutions, minority or non-minority, but unaided, which would be in violation of  W.P.(C) No.17873/2006 etc. - 124 - Articles 19(1)(g) and 30(1) of the Constitution of India. There is no other conclusion which can be drawn from the various judgments relied upon by the learned counsel representing the parties referred to above. In so far as the emphasis on the sentence in para 137 that, if the admission procedure so adopted by a private institution or group of institutions fails to satisfy all or any of the triple tests, it can be taken over by the State substituting its own procedure, we may again mention that reliance of the learned counsel is by completely ignoring the reference and context of such sentence. It is clearly mentioned in the beginning of para 137 as laid down in Pai Foundation that managements of minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle also applies to non-minority institutions. The State also, no doubt, can provide a procedure of holding common entrance test, but the right of the State is 'only to provide a procedure'. No doubt, the Government can regulate the procedure of holding a common  W.P.(C) No.17873/2006 etc. - 125 - entrance test, to vouchsafe fair and merit based admissions and to prevent maladministration, but the test as such can be taken over by the State only if the institutions may fail to satisfy the triple test, by substituting its own procedure. It is, thus, in the case of failure of the institutions to hold examination with the triple test that, the State can take over the procedure. That is the only exception provided with regard to right of minority to have their own admission.

33. In so far as the contention of learned counsel based upon para 155 of the judgment in Inamdar's case, we would like to mention that reliance upon aforesaid observation has been placed by completely ignoring the reference and context in which such observations were made. The Constitution of the Committee regulating admission and fee structure was said to be only a temporary measure, until such time the Central or State Governments were to devise suitable mechanism even by legislation. Surely, the legislation would be for regulating admission procedure and fee structure. But the same in so far as admissions are concerned, would only relate to the triple test  W.P.(C) No.17873/2006 etc. - 126 - of fair, transparent and non-exploitative method or procedure. An all sweeping legislation on all admission matters which may even result in complete take over and resulting to nationalisation is wholly impermissible. It is not all envisaged or spelt out from the observations mentioned above and relied upon by the learned counsel. If it was to be so read, there would have been no need, whatsoever, to have a lengthy discussion on the subject with law being laid down in the judgment leading to the observations in para 155, and in particular, paras 136 and 137 .

34. The question that further arises for consideration is whether there has been failure to conduct the examination with the triple test as mentioned above as also as to whether a single failure on this count by the institutions imparting single stream of education would clothe the Government with the right to take over the conduct of examination in the manner as envisaged in Section 3, for all times to come and for institutions imparting any stream of education.

35. We have in the earlier part of the judgment already mentioned the pleadings on this score and the  W.P.(C) No.17873/2006 etc. - 127 - accompanying/supporting documents. Whereas it is the positive case of the petitioners that there was no past experience of maladministration of examination conducted by the consortium of private self financing professional institutions in the State, it is the case of the respondent-State that the legislature felt in its wisdom that there was large scale maladministration and exploitative methods adopted by the private professional colleges, and that the power to admit is the root cause of capitation fee and merit being given a go-by. Mr.Justice K.T.Thomas, the Chairman of the Committee for overseeing the conduct of examination had pointed out that the management of Self Financing Medical, Dental, Ayurveda and Siddha Colleges have violently violated the guidelines issued by the Supreme Court by conducting a rigged and farce entrance test for admitting students as if they are merit students. We have already referred to the proceedings of Justice K.T.Thomas Committee and the letter, marked as Exts.R1(a) and R1(b) as also letter dated 30.7.2004, written by a student. We have already observed that the plea raised by the petitioners  W.P.(C) No.17873/2006 etc. - 128 - institutions that there was no allegation in regard to the quality of the test and that the main complaint against the institution was that they had issued the prospectus and fixed the exorbitant fee to be charged, before the Committee had fixed the fee payable by the students, which resulted into preventing number of students from taking the examination. The Committee presumed from the aforesaid fact that the test conducted was not proper. It is no doubt true that a presumption has been drawn for the test to be rigged for the reason that a large number of students were prevented from taking the test, but even for that reason it can at least be said that the test that was ultimately held, many students who could have fared better than those who applied and admitted could have been admitted. In a way, thus, some of the students who might have been better than those who applied and admitted were prevented which may have resulted into the test being not proper. The result of the test having been declared on the very next day and the presumption drawn therefrom that, it may not be a test on merit cannot be said to be unfounded. A finding has to be  W.P.(C) No.17873/2006 etc. - 129 - returned on the totality of facts and circumstances of the case that the consortium test held in 2004 would be sans the triple test.

36. A single complaint with regard to single test with regard to a single consortium of medical institutions, in our view, however, would not constitute abrogation of all examinations conducted by Consortium of managements thus nationalising the entire admission system. It is significant to mention that preceding the test of 2004, in the year 2002 the Government came up with Regulations dated December 18, 2002 for admission to the Unaided Professional Colleges. This related to maximum fee payable by students admitted against 50% merit seats in the self financing colleges for M.B.B.S course. The challenge to the Regulations succeeded and the the writ petition and connected matters were allowed vide orders dated 20th January, 2003. A review petition was filed against the aforesaid judgment, wherein it was contended that the Colleges had admitted candidates with very low merit. It was emphasised that one of the candidates had a score of as low as 8.9% in the  W.P.(C) No.17873/2006 etc. - 130 - examination conducted by the Commissioner. During the course of hearing, on 14th February, 2003, the lists of students admitted by both the Colleges were produced by the learned counsel. The marks earned by candidates in various subjects viz., Physics, Chemistry and Biology were indicated. It was pointed out that candidates had high scores in their qualifying examination which range from 52% to 88.4% and all of them fulfill the conditions of eligibility. The court observed that the students had appeared in the test conducted by the institution and they had been tested not only for their knowledge of the essential subjects but were also examined for their aptitude. They were interviewed and it was thereafter the merit list was prepared. The court while dealing with the issue observed thus: "On a consideration of the matter,

we find that the students admitted by the institutions were not ineligible. Still further, the decision in T.M.A.Pai Foundation case (supra) recognises the right of the unaided colleges to conduct their own entrance test. In any event, the respondents had not even raised their little finger against the process of selection as  W.P.(C) No.17873/2006 etc. - 131 - followed by the institutions during the course of hearing of the Writ Petitions. No question about the merit of the candidates admitted by the institutions had been raised. Even at the hearing of the Review Petitions, it was not suggested that they were ineligible. Thus, at this stage, especially when the students are not even parties in the cases before us, it cannot be said that there was any irregularity in their admission.". The Bench after reproducing the article dated January 27, 2003 in the additional issue of Newsweek with the caption "Getting Past the Gates" further observed:

"The above observations clearly indicate that the Courts have to be slow to enter academic thickets. It is best to leave the matters of inter-se merit to the educationists and experts in the field. Resultantly, the first question as noticed above, is answered against the applicants. It is held that the State does not have a right to claim 50% seats in the unaided professional colleges".  W.P.(C) No.17873/2006 etc. - 132 - What thus appears from the records of the present case is that there was no complaint, whatsoever, with regard to the any of the institutions imparting any stream of education with regard to the test conducted by the Consortium. Even now, the allegation of farce test is against the institutions imparting medical education. There is no complaint whatsoever with regard to institutions imparting Engineering, Nursing and Teacher Education. In the circumstances mentioned above and also in view of the law laid down by the Supreme Court referred to above, in our view, the examination conducted in 2004 could at the most pro-tempore taken over by the Government. The right of the State to take over a test or an institution losing or forfeiting its rights to conduct the test is sought to be supported from the observations made by the Honourable Supreme Court in Inamdar's case in para 137, the pertinent reliance is upon the following observation: "The admission procedure so

adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be  W.P.(C) No.17873/2006 etc. - 133 - taken over by the State substituting its own procedure.". The observation extracted above may be read to mean that the test, authenticity of which is doubted by the State, could be taken over with regard to that test, but such taking over cannot be perennial. No one with certainty can say that a mistake committed once shall be repeated for ever. To illustrate, the person in charge may in some weak moment actuated for some extraneous reasons may depart from triple test. He himself may realise the mistake or be told that he had indeed made a mistake, there would be thus in that case, remedial measures and may be in the next year the test be conducted by a philanthropist of highest credentials, who may see to it that the test is conducted with even better standards fixed by the Government. Surely, such a test far from being condemned has to be appreciated. However, if a single time failure to comply with the triple test is held to be enough to take over the admission and nationalise the education for all times to come, it would be a travesty of justice. It would be harsh and  W.P.(C) No.17873/2006 etc. - 134 - unreasonable and also violative of the rights of the institutions under Articles 19(1)(g) and 30(1) of the Constitution of India. We may further mention that the rights of the citizen are permanent in nature. In case of reasonable restrictions, subject to which that right may be available, are not adhered to the solution cannot lie in taking with that right. It would lie in at the most, in correcting it. The correction in the context of controversy in issue would only mean taking over such a test only and for that institution only. We have already mentioned that the so-called one rigged test pertains only to medical institutions. There is not even an allegation, least any proof thereof, that any other institution imparting any other stream of education had ever indulged into any malpractice and deviated from the triple test for admission.

37. Our observations as made above apart, what however, clinches the issue is that the Government of Kerala enacted Act of 2004. This Act came into being on 15th July, 2004. The procedure for admission in the Self Financing Professional Colleges was prescribed in the Act of 2004. No  W.P.(C) No.17873/2006 etc. - 135 - notice of single default committed by the institutions imparting medical education was taken into consideration by the Legislature. The institutions were left free to make admissions on the basis of consortium test. Surely, if the procedure of admission in the State of Kerala had gone totally haywire and merit had become a casualty, this important aspect could not possibly be missed out and the legislative wisdom could well have made provisions regulating the admission by the State as the allegation of rigged test pertain to the year 2004 which was held on 13.6.2004 and the proceedings, Ext.R1(a), of the Mr.Justice K.T.Thomas Committee was recorded on 3.6.2004, and also the letter written by a student who appeared in the entrance examination conducted by the consortium was dated 30.7.2004. The judgment in T.M.A.Pai's case was pronounced as early as on 31st October, 2002 and it is this judgment only which has been clarified in Inamdar's case.

38. From the discussion made above, it has to be held that the unaided minority or non-minority institutions have a fundamental right enshrined under Articles 19(1)(g) and 30(1)  W.P.(C) No.17873/2006 etc. - 136 - of the Constitution of India to run educational institutions. The minority institutions have an additional right which may be called as even a protection to establish and administer the institutions of their choice. The admissions can be regulated by legislation, but such legislation can only and surely be for ensuring the triple test of fair, transparent and non-exploitative procedure in the matter of admission. The State has indeed taken adequate measures in the impugned Act itself that the admissions may be merit oriented. The provisions do adequately take care of a test which may ensure the triple test. The Admission Supervisory Committee has been constituted as per Section 4. It consists of a retired Judge of the Supreme Court or High Court as Chairperson; Secretary to Government, Higher Education Department is to be Member Secretary; whereas, Secretary to Government, Health and Family Welfare Department, Secretary to Government, Law Department, The Commissioner for Entrance Examinations, Kerala, and an educational expert belonging to Scheduled Caste or Scheduled Tribe Community are to be Members of the Committee. By  W.P.(C) No.17873/2006 etc. - 137 - virtue of provisions of sub-section (6) of Section 4, the Admission Supervisory Committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a view to ensure that the process is fair, transparent, merit-based and non-exploitative under the provisions of the Act. The Admission Supervisory Committee in view of sub-section (7) of Section 4 has the right to hear complaints with regard to admission in contravention of the provisions of the Act and if it may find violation of the provisions, it could make appropriate recommendation to the Government for imposing a fine up to Rupees Ten Lakhs. The Committee has also the right to declare admissions made in respect of any or all seats in a particular college or institution to be de hors merit and therefore invalid and communicate the same to the concerned University. On receipt of such communication, the University shall debar such candidates from appearing from any further examination and cancel the results of examinations already appeared for. The Committee can also recommend to the University or statutory body for withdrawal of  W.P.(C) No.17873/2006 etc. - 138 - affiliation or recognition of such college or institution or take any other action which it may deem fit. The provisions contained in sub-sections (6) and (7) of Section 4 of the Act provide foolproof procedure from the beginning of the test up to its end, which would ensure that the process is fair, transparent and non- exploitative. This is the only right of the State. Having done so, there was no need for the State to frame Section 3 arrogating to itself the complete right of admission and the procedure thereof. This is nationalisation of education and is wholly impermissible. Further, if by virtue of the provisions contained in Section 3 of the Act dealing with the method of admission in professional colleges or institutions, the admissions are now to be regulated or made through the common entrance test conducted by the State only followed by centralised counselling through the single window system by the Commissioner for Entrance Examinations, what was the requirement of making the provision such as sub- sections (6) and (7) of Section 4. Surely, it cannot be case of the State that the procedure followed by it may be defective or lacking the triple test.  W.P.(C) No.17873/2006 etc. - 139 - Determination of fee structure and State control

39. The next limb of the case would pertain to provisions dealing with fee structure. The provisions contained in the Act with regard to fee structure as mentioned above are under challenge. The question once again would be the right of the management to determine the fee structure and the permissibility of the regulations and the extent thereof. The provisions in the Act of 2006 that may have a bearing upon the controversy and which are under challenge would need immediate notice.

40. Fee has been defined in Section 2 (e) to mean all fees including tuition fee, development fee and any other fee fixed by the Fee Regulatory Committee. Freeship as per Section 2(g) would mean full or partial remission of tuition fee awarded to Scheduled Caste and Scheduled Tribe and other socially, educationally and economically backward students on merit cum means basis by an unaided professional college or institution as may be prescribed. Higher Education Scholarship Fund has been defined in Section 2(j) to mean the fund for  W.P.(C) No.17873/2006 etc. - 140 - providing scholarship to socially and economically backward students on merit cum means basis. Collection of Capitation Fee by virtue of provisions contained in Section 5 of the Act has been prohibited. Violation of the provisions contained in Section 5 (1) prohibiting collection of capitation fee would entail penal action against the management. The fee regulatory committee would consist of a Chairperson who should be a retired Judge of the Supreme Court or High Court, a Member Secretary, who should a Secretary to Government either in charge of Health and Family Welfare or Higher Education and three Members of whom one member would be a Chartered Accountant nominated by the Government in consultation with the Chairperson, second member a representative of either the Medical Council of India or the All India Council for Teacher Education and the third member to be an educational expert nominated by the Government in consultation with the Chairperson. Sub-sections (4), (5) and (7) of Section 6, Section 7 and Section 9 which are most relevant read as follows:  W.P.(C) No.17873/2006 etc. - 141 -

"Section 6(4). The Fee Regulatory Committee shall have power to:

(a) require each unaided professional college or institution to place before the committee the proposed fee structure of such college or institution with all relevant documents and books of accounts for scrutiny well in advance of the commencement of the academic year, i.e. not later than 31st December, of the previous academic year;

(b) verify whether the fee proposed by each college or institution is justified and it does not amount to profiteering of charging of capitation fee;

(c) approve the fee structure or determine some other fee which can be charged by the college or institution. (5) The fee determined by the Committee shall be binding on the unaided professional college or institution for a period of three years. The fee so determined shall be applicable to a candidate who is admitted to a college or institution in that academic year and shall not be revised till the completion of his course in the said college or institution. No unaided  W.P.(C) No.17873/2006 etc. - 142 - professional college or institution shall collect a fee amounting to more than one year's fee from a candidate in an academic year. Collection of more than one year's fee in an academic year shall be construed as collecting of capitation fee and shall be liable to be proceeded against. (8) The Fee Regulatory Committee shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions, and shall, for the purpose of making any enquiry under this Act, have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) while trying a suit in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any witness and examining him on oath.

(b) requiring the discovery and production of any document.

(c) issuing commissions for the examination of witnesses and for local inspections; and any proceeding before such Committee shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the  W.P.(C) No.17873/2006 etc. - 143 - Indian Penal Code (Central Act 45 of 1860)." "Section 7. Factors for determination of fee.- The

Fee Regulatory Committee shall determine and fix the fee or fees to be charged by an unaided professional college or institution taking into consideration the factors, such as,--

(a) the obligation on the part of all unaided professional colleges or institutions to provide freeship to a minimum of fifty per cent of the students admitted and the additional expenses, if any required for the same over and above the excess funds generated from Non-Resident Indians, charity on the part of managements and contributions by the Government for providing freeship for Scheduled Caste or Scheduled Tribe students;

(b) the nature of the professional course;

(c) the available infrastructure;

(d) the expenditure on administration and maintenance.

(e) a reasonable surplus required for the growth and development of the college.

(f) any other factor as the Committee may deem fit.  W.P.(C) No.17873/2006 etc. - 144 -

"Section 9. Fees not to be collected excessively.- (1) No unaided professional college or institution shall collect any fee by whatever name called from the candidate for admission over and above the fee determined by the Fee Regulatory Committee and the fee prescribed by the University concerned; Provided that the Fee Regulatory Committee shall fix the fee for Non-Resident Indian seats and the amount so collected over and above the fee fixed for other students in the college or institution in such seats shall be utilised for providing freeship to socially and economically backward students. (2) All unaided professional colleges or institutions shall provide freeship to the extent prescribed for a minimum of fifty percent of the students admitted. (3) Any officer of the State or Central Government or any other public officer or authority who issues an income certificate which conceals the actual income of the person to whom certificate is issued and any recipient of such certificate who by making use of the  W.P.(C) No.17873/2006 etc. - 145 - certificate claims any benefit with regard to freeship or scholarship shall be liable for penalty under section 15 of the Act. (4) Notwithstanding anything contained in any other provisions of this Act, the fixation and levy of fees at the rates fixed by the Committee constituted before the date of coming into force of this Act shall be deemed to be validly fixed and collected.". From a reading of the provisions as reproduced above, it would thus appear that the Fee Regulatory Committee would require unaided professional colleges to place before it its fee structure, it would have right to verify whether the fee proposed by the institutions is justified and does not amount to profiteering or charging capitation fee. It would approve the fee structure or may even determine some other fee which can be charged by the college or institution. The fee determined by the Committee is binding on the college or institution. The committee would have power to regulate its own procedure on all matters arising out of the discharge of its functions. The factors to be taken into consideration for determination of the  W.P.(C) No.17873/2006 etc. - 146 - fee would include obligation on the part of the unaided institution to provide freeship to a minimum of 50% of students, which would be over and above the excess funds generated from Non-Resident Indians, charity on the part of managements and contribution by the Government for providing freeship for Scheduled Caste and Scheduled Tribe students. The fee cannot be collected excessively, which may be over and above the one determined by the Committee. The Committee, however, would fix fee for Non-Resident Indian seats and the amount so collected over and above the fee fixed for other students in the college or institution in such seats should be utilised for providing freeship to socially and economically backward students. Unaided professional colleges, minority or non-minority, have to provide freeship for a minimum of 50% of the students admitted. Rule 11 of the Rules of 2006 dealing with freeship and its disbursement reads as follows: "11. Freeship and its disbursement- (1) All

unaided professional colleges or institutions, including minority and non-minority colleges or institutions shall provide freeship to a minimum of 50% of the students admitted in each college, subject to the stipulations regarding income limit.  W.P.(C) No.17873/2006 etc. - 147 - Full remission will be given to all SC/ST students, irrespective of their income, whether admitted under specified category or under general merit category. 40% of the students admitted shall also be given partial remission of fee. Students other than those admitted under SC/ST, privilege seats and Non-Resident Indian seats will be eligible for the partial remission of fee on merit- cum-means basis. The fee payable by them will be the same as prevailing in Government or Aided Colleges or institutions for the same courses. Only those students whose annual family income does not exceed two lakh fifty thousand rupees and who have applied for freeship with all relevant documents to support their claim will be considered for the grant of freeship. Initially, freeship will be awarded to in the ratio of seats allotted to other socially and educationally backward classes, physically challenged and to categories other than the two above. Where adequate numbers of claimants are not available under other socially and educationally backward classes or physically challenged categories, the same shall be granted to other categories. (2) The fee payable at rates prevailing in Government/Aided colleges or institutions in respect of SC/ST students admitted under specified category will be paid to the institution concerned by the Government. The fee payable by SC/ST students admitted under general merit will be fully paid to the institution by the Government." Unaided professional colleges, minority or non-minority, have to provide freeship to a minimum of 50% of the students; full  W.P.(C) No.17873/2006 etc. - 148 - remission has to be given to all SC/ST students; 40% of students admitted have to be given partial remission of fee. Students other than those admitted under SC/ST, privilege seats and NRI seats are eligible for partial remission of fee on merit cum means basis. The fee payable by them is the same as in Government College or Institutions

41. Mr.Rajeev Dhavan, learned senior counsel for the petitioners representing Medical Colleges contends that, the fee fixation for unaided institutions has to take place on the basis of the formula known as 'revenue plus development' laid down in T.M.A Pai's case. The fee as per the formula aforesaid can be fixed by taking into consideration the revenue cost of the institution, its loan and borrowings as also a reasonable amount towards development. Profiteering and charging of capitation fee is all that can be regulated by the State. In the present case, by virtue of the provisions referred to above, the Government, however, has taken over fixation of fee, which is wholly impermissible, further contends the learned counsel.  W.P.(C) No.17873/2006 etc. - 149 -

42. Per Contra, Mr.Vaidyanathan contends that fixation of fee by the State Level Committee had expressly been approved and acted in Islamic Academy's case. The observations made in the said case with regard to fixation of fee by the State were assailed by the institutions in Inamdar's case, but the contentions so raised were rejected and it was held that direction with regard to determination of fee structure by the committee as a permissible regulatory measure. In so far as freeship is concerned, it is urged by the learned counsel that the Supreme Court held that education is a national wealth which should be distributed equally and widely in the interest of creating an egalitarian society. Higher amounts of money collected from the more affluent students like Non-Resident Indians can be utilised for benefiting students from economically weaker sections of society. The provisions contained in Sections 7 and 9 of the Act of 2006 are only extension of the principle of rich subsidising the poor by including even the Non-NRI affluent section to share the burden of subsidising the poor who are identified on a merit cum means basis. The poor students can be  W.P.(C) No.17873/2006 etc. - 150 - given scholarships/freeship and the cost of such seat should be covered by fees which are fixed. By permitting freeship, no loss of revenue would be caused to the managements. The State fully subsidises all SC/ST students and the affluent students subsidises the other educationally and economically weaker section of the society. Under Article 41 and 46 of the Constitution of India, the State has to promote the educational and economic interests of the weaker sections of the people. The impugned sections of the Act of 2006 only enable the State to take care of weaker sections of the community, thus contends the learned counsel.

43. The answer to the above question, in our opinion, would once again lie in the three leading decisions in T.M.A.Pai's case, Islamic Academy's case and Inamdar's case, and we may mention that arguments for and against have been raised, by and large, on the basis of the observations in these three judicial precedents. The background on which the question pertaining to fee fixation by the Government or the authorities came to be focussed by the Supreme Court shall however, have to be first  W.P.(C) No.17873/2006 etc. - 151 - noticed. In the case of Mohini Jain v. State of Karnataka, it may be recalled that the challenge was to a notification of June, 1989 which provided for a fee structure whereby for Government seats the tuition fee was Rs.2000/- per annum and for students from Karnataka the fee was Rs.25,000/- per annum while the fee for Indian students from outside Karnataka under the payment category the fee was Rs.60,000/- per annum. It was contended that charging such a discriminatory and high fee violated constitutional guarantees and rights, but it was held that there was a fundamental right to education in every citizen, and that the State was duty bound to provide education and that the private institutions that discharge the State's duties were equally bound not to charge a higher fee than the government institutions. The prescription of fee in excess of what was payable in government colleges was held to be capitation fees, which was illegal. This decision was under serious challenge in Unnikrishnan's case. The institutions urged before the Supreme Court that if the ratio of the decision rendered in Mohini Jain's case was to be adhered to, the institutions shall have to be  W.P.(C) No.17873/2006 etc. - 152 - closed down, for lack of funds by way of tuition fees. In Unnikrishnan's case, the Supreme Court considered the conditions and regulations, if any, the State could impose in the running of private unaided/aided, recognised or affiliated educational institutions conducting professional course and it was held that private unaided recognised/affiliated institutions running professional courses were entitled to charge a fee higher than that charged by government institutions for similar courses but the same should not exceed the maximum limit prescribed by the State. With regard to private aided recognised/affiliated institutions, it was held that Government had power to frame rules and regulations in the matter of admission and fees. The court after examining these aspects of the matter formulated a Scheme and directed every authority granting recognition/affiliation to impose that scheme on every institutions seeking recognition/affiliation, even if they were unaided institutions. In the context of the issue under consideration, the Scheme provided that 50% of seats in every professional college should be filled by the nominees of the  W.P.(C) No.17873/2006 etc. - 153 - Government or University, selected on the basis of merit determined by common entrance test, which will be referred to as 'free seats'; the remaining 50% seats (payment seats) should be filled up by those candidates who pay the fee prescribed therefor and the allotment of students against payment seats should be done on the basis of inter se merit determined on the same basis as in the case of free seats. The Scheme further provided that it would be open to the professional colleges to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating university and the fee chargeable in each professional college should be subject to such a ceiling as may be prescribed by the appropriate authority or by a competent court. The scheme further provided that every State Government should constitute a committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, fix the fee once in every three years or at such intervals as it may think appropriate. The University Grants Commission was left open to frame regulations to regulate the fee that the affiliated colleges operating on  W.P.(C) No.17873/2006 etc. - 154 - no-grant-in-aid basis were entitled to charge. The AICTE, the Indian Medical Council and the Central Government were also given similar advice.

44. This Scheme as mentioned above was under serious challenge. It was urged by the counsel on behalf of the private institutions that the scheme framed in Unnikrishnan's case was not warranted. It is relevant to mention that even the Solicitor General contended likewise. The costs incurred on educating a student in an unaided professional college was stated to be more than the total fee which could be realised as per the scheme and this would result in revenue shortfalls. By an interim order, the Supreme Court, subsequent to the decision in Unnikrishnan's case, permitted within the payment seats some percentage of seats to be allotted to non-resident Indians, against payment of a higher amount as determined by the authorities, but that also would not make available sufficient funds for development of such institutions, was further urged by the counsel appearing for the institutions. Another infirmity pointed out pertained to free seats being grabbed by students  W.P.(C) No.17873/2006 etc. - 155 - coming from affluent families, whereas students from poor families were required to pay much more to secure admission to payment seats. We may quote a joint contention raised by the learned counsel for the petitioner-institutions as also the Solicitor General in that connection. It reads as follows:

"Counsel for the institutions, as well as the Solicitor General, submitted that the decision in Unni Krishnan case insofar as it had framed the scheme relating to the grant of admission and the fixing of the fee, was unreasonable and invalid" . The fixation of fee by the Government or by authorities of the Government was thus directly in issue, not only independently but also in connection with the law laid down on the issue clothing the Government or the authorities to fix the fee in Unnikrishnan's case and the said scheme was under direct challenge. On consideration of the issue, the Supreme Court in T.M.A Pai's held as under: "It appears to us that the scheme

framed by this Court and thereafter followed by the Governments was one that cannot be called a reasonable restriction under Article 19(6) of  W.P.(C) No.17873/2006 etc. - 156 - the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers are required to be paid properly. As pointed out above, the restrictions imposed by the scheme, in Unni Krishnan case made it difficult, if not impossible, for the educational institutions to run efficiently. Thus, such restrictions cannot be said to be reasonable restrictions. The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfils the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution". In so far as the scheme pertaining to freeship framed in Unni Krishnan's case is concerned, the Supreme Court in T.M.A.Pai's case observed as follows:

"Unni Krishnan judgment has created certain problems and raised thorny issues. In its anxiety to check the commercialization of education, a scheme of 'free' and 'payment' seats was evolved  W.P.(C) No.17873/2006 etc. - 157 - on the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the converse has proved to be the reality. In this scheme, the 'payment seat' student would not only pay for his own seat, but also finance the cost of a 'free seat' classmate. When one considers the Constitution Bench's earlier statement that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban students always have an edge over the rural students. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well exposed urban student." The other relevant observations read thus: "The scheme in Unni Krishnan's case has the effect of nationalizing the education in respect of important features viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions, curtailing all the essential features of the right of administration can  W.P.(C) No.17873/2006 etc. - 158 - neither be called fair nor reasonable". "In view of the discussion hereinabove, we hold that the

decision in Unni Krishnan case in so far as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled". Having overruled the scheme in Unni Krishnan's case, the court then examined the issue by taking into consideration the status of the institutions like private institutions, private unaided non- minority educational institutions, private unaided professional colleges, private aided professional institutions (non-minority) and other aided institutions. To what extent the regulations could be made with regard to admission and fixation of fee was the pertinent question. This matter was first considered with regard to private unaided non-minority educational institutions, by observing that unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher  W.P.(C) No.17873/2006 etc. - 159 - education to the forefront, and the existence and expanding of private institutions in the present scenario was observed to be essential. The right to establish and administer essentially included the right to set up reasonable fee structure was further observed in T.M.A.Pai's case. The report of the University Education Commission, of which Dr.S.Radhakrishnan was the Chairman, was then taken into consideration. On the said passage reproduced in paragraph 51 of the judgment in T.M.A.Pai's case, the Supreme Court observed thus:

"There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that State aid was not to be confused with State control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental  W.P.(C) No.17873/2006 etc. - 160 - controls". In the context of fundamental rights of the institutions under Articles 19 and 26(a), in so far as setting up a reasonable fee structure is concerned, it was observed that, in setting up a reasonable fee structure, the element of profiteering is not yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilised for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. The fixing of a rigid fee structure was then held to be an unacceptable restriction on the rights of the institution under Articles 19 and 26(a) of the Constitution. The other pertinent observation pertaining to fee structure read thus: "One cannot lose sight of the fact that

providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek  W.P.(C) No.17873/2006 etc. - 161 - any aid from the Government, to determine the scale of fee that it can charge from the students. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. There can, however, be a revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution". While dealing with the unaided professional colleges, it was held that it would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions and it must be borne in mind that unaided professional institutions are entitled to autonomy in their administration. It was then held that a rational fee structure should be adopted by the management, which would not entitle them to charge a capitation fee and appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a  W.P.(C) No.17873/2006 etc. - 162 - reasonable surplus for the furtherance of the education is permissible.

45. In Islamic Academy's case, a Bench of Five Honourable Judges was constituted to clarify the doubts or anomalies in the decision of the Constitution Bench of 11 Judges in T.M.A Pai's case. Briefly put, the institutions projected before the court that fixation of percentage of seats that could be filled in the unaided professional colleges, both minority and non-minority by the management as done by the various State Governments was impermissible. The private unaided professional educational institutions had been given complete autonomy not only as regards the admission of students but also as regards the determination of their own fee structure. These institutions could fix their own fee structure which could include a reasonable revenue surplus for purposes of development of education and expansion of the institutions and that as long as there was no profiteering or charging of capitation fee, there could be no interference by the Government. The Supreme Court, on the various contentions raised before it, framed four  W.P.(C) No.17873/2006 etc. - 163 - questions, the first being whether the educational institutions are entitled to fix their own fee structure. The majority judgment in T.M.A.Pai case was interpreted or clarified to say that there can be no fixing of rigid fee structure by the Government. Each institute must have freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. The fees to be charged must necessarily be left to the private educational institution that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc.. There can be no profiteering and capitation fee cannot be charged. In Islamic Academy's case, the Supreme Court thus held that as per the  W.P.(C) No.17873/2006 etc. - 164 - majority judgment in T.M.A.Pai's case, imparting of education is essentially charitable in nature and that the surplus/profit that can be generated must be only for the benefit/use of that educational institutions. Profit/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. The Supreme Court then directed that in order to give effect to the judgment in T.M.A. Pai's case, the respective State Governments/concerned authority shall set up in each State a Committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. Each educational institute must place before the Committee well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure, all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee should then decide whether the fee proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee structure which can  W.P.(C) No.17873/2006 etc. - 165 - be charged by the institute and the fee fixed by the Committee shall be binding for a period of three years. Once the fee is fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged under any other head or guise, e.g. donations, the same would amount to charging of capitation fee. The Government/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering, that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation. In so far as institutions collecting advance fee are concerned, it was observed that the same must be kept invested in fixed deposits in nationlised bank and, as and when fee fall due for a semester/year, only the fee falling due for that semester/year must be withdrawn by the institution and the rest must continue to remain deposited till such time they fall due. At the end of the course, the interest earned on these deposits must be paid to the student from whom the fees were collected  W.P.(C) No.17873/2006 etc. - 166 - in advance.

46. In Inamdar's case, in question No.3 framed by it with regard to the correctness of the judgment in Islamic Academy's case, issuing guidelines in the matter of regulating fee payable by students to the educational institution was under discussion. To set up a reasonable fee structure was held to be component of the right to establish and administer an institution within the meaning of Article 30(1) of the Constitution as per law declared in Pai Foundation. After so observing, it was held that, every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form. (Reliance for these observations was placed on paras 56 to 58 and 161 of Pai Foundation). In so far as capitation fee is concerned, it was held that the same could not be charged. The answer to the question was that every institution would be free to devise its own fee structure, but the same can be regulated in the interest of preventing profiteering and that no capitation fee can be charged. While concluding its judgment, the Supreme  W.P.(C) No.17873/2006 etc. - 167 - Court in para 155 observed thus:

"The committee regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made hereinabove".

47. From the three major decisions referred to above what thus transpires is that whereas in Unnikrishnan's case the scheme that came to be framed pertaining to fee fixation, 50% of the seats in every professional colleges were to be filled by the nominees of the Government or University, selected on the basis of merit determined by common entrance test which were to be free seats whereas the remaining 50% seats should be payment seats. The institution was left open to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating university and the fee chargeable in each professional college was made subject to such  W.P.(C) No.17873/2006 etc. - 168 - a ceiling prescribed by such appropriate authority or by a competent court. Every State Government had to constitute a committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges and the committee should fix the fee once in every three years or at such intervals, and regulations could be framed to regulate the fee for the institutions running on no-grant-in-aid basis. The scheme in terms provided that fee as may be prescribed by the professional colleges would be subject to such a ceiling as may be prescribed by the appropriate authority. The Committee that may be constituted had power to fix the ceiling on fee chargeable by professional colleges. 50% of seats had to be free seats and to be filled up by nominees of the Government or University selected on the basis of merit determined by common entrance test and rest of 50% would be payment seats. The scheme framed in Unnikrishnan's case was under serious challenge in T.M.A.Pai's case. The institutions made a fervent request to recall or set at naught the scheme framed in Unnikrishnan's case as the same was bound to result in revenue  W.P.(C) No.17873/2006 etc. - 169 - shortfalls. The interim order passed by the Court permitting within payment seats, some percentage of seats which could be alloted to non-resident Indians against payment of higher amount, it was urged has also not come to rescue the petitioner institutions and they could not run the institutions at all because of paucity of funds. It is relevant to mention that the scheme framed in Unnikrishnan's case was stated to be unsustainable not only by the counsel appearing for the petitioners institutions, but also by the learned Solicitor General of India. It was commonly contended by them that the scheme framed was unreasonable and invalid. Indeed, the Supreme Court accepted the said contention by holding that the scheme could not be called a reasonable restriction under Article 19(6) of the Constitution. The restriction imposed was held would make it difficult, if not impossible, for the educational institutions to run the institution. In so far as freeship envisaged in Unnikrishnan's case is concerned, it was held that when higher education was not a fundamental right, it would be unreasonable to compel a citizen to pay for the education of another, more so  W.P.(C) No.17873/2006 etc. - 170 - in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where the urban students always have an edge over the rural students. The Scheme in Unnikrishnan's case was held to have the effect of nationalizing education in respect of important features like right of private unaided institution to give admission and to fix the fee. The law permitting the directions given to the UGC, AICTE, Medical Council of India, and Central and State Government was overruled. After overruling the scheme framed in Unnikrishnan's case and holding it to be unconstitutional, the matter was further examined and it was held that in the context of fundamental right of the institution under Articles 19 and 26(a) of the Constitution pertaining to setting up of a reasonable fee structure, the element of profiteering was not accepted and further the fee structure must take into account the need to generate funds to be utilised for the betterment and growth of the educational institutions. The fixing of rigid fee structure was held to be unreasonable restriction on the rights of the  W.P.(C) No.17873/2006 etc. - 171 - institution. In Islamic Academy's case, the view taken in Unnikrishnan's case was once again almost reiterated and respective State Governments were then permitted to set up in each State a Committee headed by a retired High Court Judge, who should be nominated in consultation with the Chief Justice of the State concerned. Each educational institution should place before the Committee, well in advance, its proposed fee structure. The Committee was then to decide whether the fees prescribed by each institution was justified and did not involve profiteering and charging capitation fee. It was further opined that the Committee was at liberty either to approve the fee structure or propose some other fee structure which could be charged. In Inamdar's case, it may be recalled that question No.3 was with regard to correctness of the judgment issuing guidelines in the matter of fee payable by students to educational institutions. To set up a reasonable fee structure was held to be a component of the right to establish and administer an educational institution as per the law declared in T.M.A.Pai's case. Every educational institution was free to  W.P.(C) No.17873/2006 etc. - 172 - devise its own fee structure subject to the limitation that there was no profiteering and no capitation fee could be charged directly or indirectly. From the conspectus of the decisions culled out in the discussion made herein before, it is clear that fixation of fee structure is a fundamental right of educational institutions more particularly, of those which are unaided. It is further clear that the fee has to be decided by the institutions themselves and such right of the institutions cannot be arrogated by the State. While, however, fixing the fee structure, the institutions cannot indulge into profiteering nor can charge capitation fee, even though the element of surplus income to cater to the future needs of the institutions can be definitely taken into account while fixing the fee. The Committees that may be constituted or the law that may be even made could only regulate the profiteering and charging of capitation fee. The Committees would themselves have every right to modify the fee structure fixed by the institutions and debar institutions by an order and if legislation is made to that effect by law, to reduce the fee in the event of its coming to a finding that the fee  W.P.(C) No.17873/2006 etc. - 173 - structure had a component of profiteering and/or capitation fee, but nothing beyond that. The fixation of fee structure is the right of an institution particularly when unaided. The right of the Committees that may be constituted or the Government to legislate, in our considered view, cannot go beyond examining the fee structure to find out therein the element of profiteering or charging of capitation fee, be it by monitoring committees or by legislation. It is in this view of the law laid down by the Supreme Court, the provisions under challenge have to be examined.

48. In view of the provisions contained in sub-section (4) of Section 6, the fee regulatory committee would have power to require each unaided college or institution to place before it the proposed fee structure with all relevant documents well in advance of the commencement of the academic year, i.e. not later than 31st December of the previous academic year and the committee has the power to verify whether the fee fixed is justified and does not amount to profiteering or charging of capitation fee and also to approve the fee structure or determine  W.P.(C) No.17873/2006 etc. - 174 - some other fee which could be charged. The fee determined by the committee is binding for a period of three years as per sub-sections (4) and (5) of Section 6. It cannot be revised with regard to the students admitted in that academic year till he completes his course. The institution cannot collect any fee more than one year's fee in an academic year as that would amount to collecting capitation fee. As per the provisions contained in Section 7, the fee regulatory committee would determine and fix the fee or fees to be charged by an unaided professional college taking into consideration the obligation to provide freeship to minimum of 50% of seats admitted and the additional expenses, if any, required for the same over and above the excess funds generated from Non-Resident Indians, charity on the part of managements and contributions by the Government for providing freeship for Scheduled Caste and Scheduled Tribe students, the nature of the professional course, the available infrastructure, the expenditure on administration and maintenance, reasonable surplus required for the growth and development of the college and any other factor which the  W.P.(C) No.17873/2006 etc. - 175 - Committee may deem fit. In view of the provisions contained in Section 9 of the Act, no institution can collect fee by whatever name called over and above the fee determined by the fee regulatory committee, provided that the committee may fix the fee for NRI seats and the amount so collected over and above the fee fixed for other students has to be utilised for providing freeship to socially and economically backward classes. Tested in the anvil of the law laid down by the Supreme Court as culled out by us hereinbefore, it appears to us that the position as available in Unnikrishnan's case has been revived. There may be some provisions in the Act that may be in consonance with the law laid down in the judicial precedents referred to above, but in so far as the right of self financing institutions to fix a fee structure as may be thought appropriate by it is concerned, the same has been completely taken away. It may be one thing to say that self financing institutions would determine their own fee structure subject to the approval of the Government, either through committees constituted by it or by law framed by it, but entirely another thing to say that every element that goes to  W.P.(C) No.17873/2006 etc. - 176 - determine the fee structure would be considered by the Committee or the Government and the fees thus fixed would be binding upon the self financing institutions. Fixation of a fee structure has indeed been held to be an important facet of establishing and administering an educational institution, be it of minority or non-minority. This right cannot be totally curtailed. This right would be straightaway infringed if it is arrogated by the State, even though there may be no infringement of such rights if it is regulated to vouchsafe non-profiteering and non-charging of capitation fee. It is no doubt true that in sub- section (4) of Section 6 of the Act, it has been stated that regulatory committee would require each unaided professional college or institution to place before it the proposed structure of fee and verify whether the fee proposed by each college is justified and does not involve profiteering or charging of capitation fee, but the right given to the fee regulatory committee to determine and fix the fee to be charged by the institution would undoubtedly infringe the right of the institution to fix its own fee structure. In the context of entire legislation  W.P.(C) No.17873/2006 etc. - 177 - pertaining to fee structure, however, that alone may not be enough to strike down Section 6 under challenge. It is too well settled a proposition of law that if it may be possible to reconcile various provisions of the Act in such a way the same can be read so as to harmonise such provisions to become in consonance with the law, the same needs to be upheld. In the circumstances aforesaid, there would be need to read down the provisions of Sections 6 of the Act of 2006. The provisions of Section 6 of the Act can be read to mean that every professional college would have a right to fix its fee structure, which would be subject to its finalisation by the Government, which would have a right to re-model it by taking away the element of profiteering and charging of capitation fee, if any. In other words, the reading down of Section 6 of the Act of 2006 thus would be to the extent that every professional college would place before the committee the fee structure as set out by it, which would be subject to verification by excluding the element of profiteering and charging of capitation fee. This reading down of the Section  W.P.(C) No.17873/2006 etc. - 178 - is necessary to protect Section 6 and such reading down shall not make any difference either to the institution or to the Government, as virtually it is in any case the right of the management to fix the fee structure and in any case the right of the Government to examine it to the extent it may have an element of profiteering or charging of capitation fee.

49. The challenge to Section 7 of the Act, however, stands on a different footing. The Fee Regulatory Committee, it appears has been given all-sweeping powers to determine the fee to be charged by an unaided professional college. The nature of the professional course, the available infrastructure, the expenditure on administration and maintenance, reasonable surplus required for the growth and development of the college and any other factor would all be taken into consideration by the Committee itself and not by the institution. Even though while dealing with Section 6 we have held that the same can be read down to mean that the institution concerned would fix the fee structure which may be regulated by the Committee as mentioned above, but insofar as Section 7 is concerned, it is the  W.P.(C) No.17873/2006 etc. - 179 - Fee Regulatory Committee which has been given the power to determine the fee taking into consideration the various factors as mentioned above. What expenses would be required to efficiently run the institution taking into consideration the nature of the professional course, the available infrastructure, the expenses of administration and maintenance and what would be the reasonable surplus required for growth and development of the college, it appears to us, should be at the discretion of the management, but this has been left to be taken into consideration and fee accordingly fixed by the Fee Regulatory Committee. In the very nature of the things it does not appear that the Regulatory Committee would know in depth the affairs of the institution as best as the institution may know itself. That apart, if all these factors are considered and fee then determined by the Regulatory Committee, then what is left out in the right of the unaided institutions in the name of establishing and administering the institution, which has an important component of fixation of fee. To illustrate, if the institution may plan its expansion to double the seats or have double the  W.P.(C) No.17873/2006 etc. - 180 - buildings and infrastructures as according to it, it may be necessary, and accordingly fix the fee, can the Regulatory Committee say the expansion and development of the institution would entail fixation of more fee and therefore it is not permitted. It may be recalled that each institution, as held by the Supreme Court, is entitled to have its own fee structure. The fee structure for each institution must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc.. It appears to us that the position that became available after Unnikrishnan's case has almost been reiterated in framing Section 7 of the Act of 2006. If one may examine closely the provisions contained in Section 7, it may appear to be almost similar to the scheme framed in Unnikrishnan's case. In Unnikrishnan's case, the scheme that came to be framed pertained to fee fixation, 50% of seats are to be filled up by the nominees of the Government or University. These 50% seats are to be free seats whereas the remaining 50% are payment seats. However, the Government has to  W.P.(C) No.17873/2006 etc. - 181 - constitute a committee to fix a ceiling on the fee chargeable by professional college/s and fix the fee once in every three years or at such longer intervals. Regulations could be framed to regulate the fee of the institutions. The scheme provided that the fee that may be fixed by the professional college would be subject to such ceiling as may be prescribed by the appropriate authority. In the present case as well, 50% of seats are to be compulsorily free seats. The Committee has been given exclusive power to fix the fee by taking into consideration different aspects as mentioned above. However, in what manner the various components would be regulated like what budget would be provided against those items has again been left to the exclusive domain of the Regulatory Committee. No unaided professional college would collect any fee from the candidates for admission over and above the fee fixed by the Fee Regulatory Committee as per the provisions contained in Section 9. There is a maximum limit also thus prescribed. Violation of the provisions of the above Act would entail penal action. This appears to be in sharp contrast to the law laid down in  W.P.(C) No.17873/2006 etc. - 182 - T.M.A.Pai's case and Inamdar's case. This is a virtual take over, clearly infringing the right of the unaided institutions in the matter of fixation of fee, which is indeed a right guaranteed to it under Articles 19 (1)(g) and 26(a) of the Constitution of India.

50. Section 2 (o) defines Non-Resident Indian seats to mean seats reserved for children or wards or dependents of Non-Resident Indians to whom admission is given by the management in a fair, transparent and non-exploitative manner on the basis of fees as may be prescribed. Section 7(a) enjoins upon even an unaided professional college to provide freeship to a minimum of fifty per cent of students admitted. The additional funds that may be required for giving 50% freeship, it is provided, can be covered by the excess funds generated from Non-Resident Indians, charity on the part of management and contribution from the Government for providing freeship for SC/ST students. In view of the provisions contained in sub-section (2) of Section 9, an unaided institution is to provide freeship to a minimum of 50% of students admitted irrespective of whether they are unaided minority or non-minority. It is  W.P.(C) No.17873/2006 etc. - 183 - interesting to note that Government by issuance of the notification in the gazette may constitute a fund called a Higher Education Scholarship Fund for providing scholarship to socially and economically backward students admitted in professional colleges as per sub-section (1) of Section 12. The corpus of the fund shall be contributions from Government, the amount of fine levied under the Act and the funds raised from any other source including Non-resident Indians. The Fund is to be administered by an administrator appointed by the Government. The administration of the fund is in the hands of the administrator to be used in such manner as may be prescribed. It may be recalled that the scheme as framed in Unnikrishnan's case provided that 50% of the seats in every professional college should be filled by the nominees of the Government or University, which would be referred to as free seats, whereas, the remaining 50% seats should be filled by those candidates who pay the free prescribed therefor. This scheme was under challenge in T.M.A.Pai's case. It was urged on behalf of the institutions that the cost incurred on educating a student in an W.P.(C) No.17873/2006 etc. - 184 - unaided professional college would be more than the total fee which could be realised as per the scheme framed in Unnikrishnan case. Despite the fact that the Supreme Court by an interim order had permitted some percentage of seats to be alloted as NRI seats against payment of higher amount, it was still urged that the same would even not come to the rescue of the institutions. It was urged that the said extra amounts would not make available sufficient funds for the development of the institutions providing freeship to the extent of 50%. While dealing with the challenge to freeship in Unnikrishnan's case, the Supreme Court observed that the said judgment has created problems and raised thorny issues. No doubt, it was observed that, the anxiety of the Bench in Unnikrishnan's case to accommodate poor students have not come true and as a matter of fact, converse had happened, but it was also observed that, "it seems unreasonable to compel a citizen to pay for the

education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where  W.P.(C) No.17873/2006 etc. - 185 - the urban students always have an edge over the rural students". Paying for others is a cross subsidy and cannot be permitted. Mr.Vaidyanathan, would however submit that the anomaly in Unnikrishnan's case that came about of poor actually subsidising the rich has been set right in the Act and now it is only the rich who would subsidise the poor. We have given our anxious thoughts to the contention raised by him, but the same does not appear to be having any substance. The two aspects in the provisions of the Act of 2006 appear to be against the contention raised by Mr.Vaidyanathan; the first being that 50% freeship despite the institutions permitted to charge extra funds from Non-Resident Indians demonstratively did not cater for revenue shortfall of the institutions, as urged in T.M.A.Pai case and accepted. Further, it is only in medical colleges we are told there may be candidates aspiring to take admission under the Non-Resident Indian category, whereas for other institutions imparting education in the stream of Engineering, Nursing and Teacher Education, there is hardly any seat that may be reserved to be taken by Non-Resident Indians. In the  W.P.(C) No.17873/2006 etc. - 186 - Engineering Colleges, we have been given data to show that during the last three academic years, so many seats went abegging. As per the data provided by the petitioner institutions, the vacancy position of seats in B.Tech Courses in the 49 institutions during the last three years viz. 2003-04, 2004-05 and 2005-06 are as follows: Name of College/Institution 2003-04 2004-05 2005-06 Mohandas College of Engg. & Technology, Trivandrum. 47 112 55 Lourdes Matha College of Science & Tech. Trivandrum 49 139 110 Mar Baselios College of Engg. & Tech., Trivandrum 19 52 14 Mary Matha College of Engg. & Tech. Trivandrum 17 148 262 P.A.Aziz College of Engg. & Technology, Trivandrum - - - Muslim Assn. College of Engg., Venjaramoodu, Trivandrum 34 82 73 Marian Engg. College, Kazhakuttom, Trivandrum 24 127 37 M.G.College of Engineering, Thiruvallom, Trivandrum 204 64 Sarabhai Institute of Science & Tech., Vellanad, Trivandrum. 0 33 SHM Engg. College, Kadakkal, Kollam. 56 163 108 Younus College of Engg. & Technology, Kollam 20 70 88 Baselios Mahews II College of Engg, Sasthamcotta, Kollam 13 73 17 Travancore Engineering College, Oyoor, Kollam 22 76 37 TKM Institute of Technology, Kollam 24 79 22 Caarmel Engg. College, Perunad, Ranni 40 99 134 Mount Zion College of Engg. , Kadammanitta, Pathanamthitta 57 135 73 Musaliar College of Engg. & Tech. Kumbazha, Pathanamthitta 19 48 63 Mar Baselios Christian College of Engg. & Tech. Peermade 43 145 135 Sree Budha College of Engineering, Pattoor, Alappuzha 4 101 6 Saintgits College of Engineering, Kottayam 3 89 139 St.Joseph's College of Engg. & Technology, Pala, Kottayam 15 80 4 Mangalam Engineering College, Aluva, Ernakulam. 0 115 83 Amal Jyothi College of Engineering, Kanjirappaly, Kottayam 45 93 24 KMEA Engineering College, Aluva, Ernakulam. 46 68 19 Viswajyothi College of Engg. & Tech., Vazhakulam, Muvattupuzha 29 106 3 Federal Institute of Science & Tech.,Mookkanoor, Angamaly 9 24 5  W.P.(C) No.17873/2006 etc. - 187 - SNM Institute of Management & Tech., Maliankara, EKM. 34 112 71 Ilahia College of Engg & Tech., Muvattupuzha 37 168 11 Adi Shankara Institute of Engg. & Tech., Kalady, Ernakulam. 31 68 8 Rajagiri School of Engg. & Technology, Ernakulam 26 11 0 SCMS School of Engg. & Tech. Karukutty, Ernakulam 58 68 50 Toc-H Institute of Science & Tech. Arakunnam, Ekm. 57 60 3 Sree Narayana Gurukulam College of Engg, Kadiyiruppu, Ekm. 31 102 14 Matha College of Engg & Tech. Mankkapady, Paravur, Ekm. Met's School of Engineering, Mala, Trissur 37 114 67 Jyothi Engineering College, Cheruthuruthy, Trissur 33 81 3 Nehru College of Engg. Research Centre, Thiruvilwamala,Trissur 19 98 17 Royal College of Engg. & Tech., Kunnamkulam, Trissur 47 169 38 Vidya Academy of Science & Technology, Trissur 6 21 9 Sahrdaya College of Engg. Technology, Kodakara, Trissur 3 10 0 IES College of Engg., Chittilappilly, Trissur 21 85 18 Al-Ameen Engineering College, Shoranur, Palakkad 51 79 40 MEA Engineering Colege, Perinthalmanna, Malappuram 47 96 118 Vedavyasa Institute of Technology, Malappuram 0 138 105 MES College of Engineering, Kuttipuram, Malappuram KMCT College of Engineering, Mukkom, Calicut 55 145 133 AWH Engineering College, Calicut 31 159 110 Vimal Jyothi Engineering College, Kannur 35 144 51 Sree Narayana Guru College of Engg. & Tech,Payyannur, Kannur 1 110 9 1295 4266 2480 When even the sanctioned seats could not be filled and so many seats remained vacant, as mentioned above, there would be hardly any Non-Resident Indian in such stream of education. That apart, it is not sure that in which year there would be demand for Non-Resident Indian seats for admission in Medical Colleges, how many such students or how many such percentage of students would seek admission in such category.  W.P.(C) No.17873/2006 etc. - 188 - In a given year there may not be any applicant desiring admission in NRI category. It is one thing to say that number of freeship would be commensurate to the admission of students in NRI category and yet another thing to say that it would be minimum 50%. Secondly, students other than Non-Resident Indians cannot possibly be asked to pay for the other students as that may cause cross subsidy and this is bound to happen if the surplus gained from Non-Resident Indians may not be enough to balance freeship to the extent of 50%. The Regulatory Committee has to fix the fee structure by positively taking into consideration 50% of freeship. It thus means that irrespective of funds generated by the institutions on account of surplus from Non-Resident Indians, charity etc., the freeship in any case would be 50%. The only consequence of the provisions read together would be either financial bankruptcy for the institutions or prescribing high fee to the students who may be admitted in non-free seats. This would make the position unreasonable and disproportionate. In Inamdar's case, the Supreme Court did observe that limited reservation of seats not exceeding 15%  W.P.(C) No.17873/2006 etc. - 189 - could be made available to Non-Resident Indians depending on the discretion of the management and that amount of money in whatever form collected from Non-Resident Indian should be utilised for benefitting students such as from economically weaker sections of the society, whom, on a well defined criteria, the educational institution may admit on subsidised payment of their fee. But, as mentioned above, what would happen if the institutions may not consider it proper to admit students belonging to NRI as it is in their discretion to do so. It is not compulsory. In that event, there will be no candidate for admission for a seat for NRI or when such students be one or two percent. The admission of students in the NRI category would vary from year to year, but in so far as fee structure is concerned, the same shall have to be worked out by providing 50% freeship, to be catered from the surplus that may be generated from Non-Resident Indians. Reference at this stage also be made to sub-section (8) of Section 10. The minority institutions are obliged to admit atleast 50% of seats of their community and out of these seats 50% are free seats. The free  W.P.(C) No.17873/2006 etc. - 190 - seats, subsidised seats or partly subsidised seats may be far more commensurate to the seats which may bring some surplus with the institutions. Not only that it may be difficult for the institutions to run their affairs, but that shall also result in cross subsidy. Looked from any angle, the provisions contained in Section 7(a) read with other provisions as mentioned above would make the said provisions unreasonable. Further, as per Section 12, a higher education scholarship fund has to be constituted for providing scholarship to socially and economically backward students admitted in professional colleges or institutions and the corpus of the fund would include funds raised from Non-Resident Indians, and this Fund is to be administered by the Administrator appointed by the Government. The surplus funds generated from admission in NRI category and from charity etc. may be to balance the freeship, but the fund has to go into the hands of the Government and has to be administered in the way and manner it may prescribe. The provisions of Section 7 of Act of 2006 would infringe upon the rights of the management in fixation of fee structure and the same have thus  W.P.(C) No.17873/2006 etc. - 191 - to be held invalid and unconstitutional. Minority Status - Determining factors:

51. There is a frontal attack on the provisions dealing with the status of minority institutions. It is urged by the learned counsel appearing on behalf of the petitioners that the provisions have been made with the sole object of completely annihilating the right of minorities to establish and administer minority institutions. If the rights of the minorities are to be worked out under the conditions envisaged under the provisions of the Act under challenge, in the State of Kerala no institution would have such a right. With a view to appreciate the contention of the learned counsel, it will be useful to take into consideration the provisions dealing with minority, particularly such provisions which limit the exercise of the right by the minorities. Minority has been defined under Section 2 (l) and the same for the purpose of the Act means a community belonging to a religious or linguistic minority as may be determined by Government taking the State as a unit. As per Section 2(m), minority professional college or institution means a professional  W.P.(C) No.17873/2006 etc. - 192 - college or institution established and maintained by a minority that fulfills the non-discriminatory criteria as laid down in the Act and determined as such by the Government. Minority seats as per Section 2 (n) means seats reserved for students who belong to the community that runs the minority unaided professional college or institution and filled up on the basis of inter se merit in the manner prescribed, from the rank list prepared by the Commissioner for Entrance Examinations. In the midst of arguments on 18th October, 2006, when enquired as to whether the determination as mentioned in Section 2(l) and 2 (m) has been so far done or not, the State sought adjournment. The

order dated 18th October, 2006 reads as follows:

copy of order dated 06.12.2006 which reads as follows:

52. The determining factors for granting recognition and conferring the status as unaided minority professional college or institution are contained in Section 8 which has already been reproduced. In so far as sub-section (1) of Section 8 is concerned, there is no dispute about the same. An unaided minority professional college established and maintained by a linguistic and religious minority is to be recognised and conferred the status of unaided minority professional college if it may have population of the concerned linguistic or religious minority community in the State which runs the professional college or institution is lesser than 50% of the total population of  W.P.(C) No.17873/2006 etc. - 194 - the State. This is indeed also what has been held in all the decisions referred to above. The dispute is with regard to clauses (b) and (c) of Section 8. As per clause (b) of Section 8, the number of professional college or institution run by the linguistic or religious minority community in the State to which the college or institution belong has to be proportionately lesser than the number of professional colleges run by the non-minority community in the State. In other words, if the number of professional colleges run by the concerned religious or linguistic minorities are more than such professional colleges or institutions run by non-minority institutions in the State, such minority institutions would have no right as envisaged under Article 30(1) of the Constitution. As per clause (c) of Section 8, the number of students belonging to the linguistic or religious minority community to which the college or institution belongs undergoing professional education in all professional colleges or institutions in the State has to be proportionately less than the number of students belonging to the professional colleges or institutions in the State. In other words, the number of the  W.P.(C) No.17873/2006 etc. - 195 - students belonging to the concerned linguistic or religious minority has to be lesser than the number of students belonging to colleges or institutions in the State. If therefore, the total number of students belonging to the concerned minority community is more than the number of students in the State in a particular stream of education, once again even though a minority community, it shall have no right as envisaged under Article 30(1) of the Constitution. Under Rule 13 of the Rules of 2006, it has been specifically provided that a minority unaided professional college or institution established and maintained by a minority community and affiliated to a University shall be recognised as an unaided minority professional college and conferred status as such only if it conforms to all the three conditions laid down in Section 8. The status of an unaided minority professional college shall be lost if and when the unaided minority professional college concerned ceases to fulfil any of the three conditions laid down in Section 8 and thenceforth, it shall be treated on par with other unaided professional college or institution. Section 10 deals with  W.P.(C) No.17873/2006 etc. - 196 - allotment of seats. It will be at this stage relevant to refer to sub-section (8) of Section 10. As per sub-section (8) of Section 10, a minority professional college shall have to admit not less than 50% of the students from within the State from the minority community to which the college or institution belongs.

53. In the context of the submissions made by the learned counsel for the parties, some factual aspects shall have first to be taken into consideration. The total population of Kerala as per Ext.R1(m) in the counter affidavit filed by the State was 2,90,98,518 in the year 1991. The population of Hindus was 1,66,68,587 which would be 57.28% of the total population. The Muslims at that time were 67,88,364 which would be 28.33% of the total population. The Christians at that time were 56,21,510 which would be 19.32% of the total population. The Sikhs at that time were 2,224, which would be 0.01% of the total population. The population of Buddhists and Jains and other religions is found nil to 0.04%. It would thus appear that all other communities but for Hindus are minority communities in the State of Kerala. The percentage of population as in 1991 is  W.P.(C) No.17873/2006 etc. - 197 - stated almost to be the same even now. The minority communities running Professional College in the State of Kerala primarily are Christians. Roughly whereas Hindus are 60%, Muslims and Christians are 20% each. Muslims and Christians are thus minorities as per clause (a) of Section 8 as the percentage of the population of the concerned minority community has to be considered Statewise. As per Ext.R1(n), a chart showing number of private self financing professional colleges belonging to Muslims, Christians and other managements, there are 13 engineering colleges run by Muslim community and 20 by Christians. The colleges run by other communities are only 15. In the medical stream, wheres there is only one college run by Muslim community, five are run by the Christian community and there is only one such college as run by other communities. In so far as Nursing is concerned, there are 8 institutions run by Muslims, 28 by Christians and 15 by others. The chart placed on record by the State in its counter affidavit in Ext.R1(n) is as follows:  W.P.(C) No.17873/2006 etc. - 198 - Colleges Muslim Christian Others Engineering 13 20 15 Medical 1 5 1 Nursing 8 28 15 The number of professional colleges or institutions run by the linguistic or religious minorities in the State of Kerala are thus more than the number of professional colleges run by non-minority communities in the State, in all streams of education, be it medical, engineering or nursing. If thus one is to go by the determining factors for according recognition and conferring status as unaided minority professional college as envisaged in clause (b) of Section 8, there would be no minority community in the State of Kerala at all. By virtue of sub-section (8) of Section 10, a minority professional college has to necessarily admit not less than 50% of the students from within the State from the minority community to which the college or institution belongs. That is a necessary requirement and the same is to be adhered to. The number of students belonging to linguistic or religious minority communities to which the college or institution belongs shall be far far more than the number of  W.P.(C) No.17873/2006 etc. - 199 - other students in the State. As mentioned above, the number of institutions run by minority communities are far more and if therefore at least 50% of that community only are admitted in such institutions they will be far more than other students, thus losing its status as minority community or the status as an unaided minority professional college or institution. The concept of minority and the institutions run by it at least in so far as the State of Kerala is concerned, it is now totally lost. There would be no unaided minority professional college or institution in the State of Kerala.

54. Learned counsel representing the petitioners vehemently contends that the rights of minorities to establish and administer their institutions guaranteed to them under Article 30 of the Constitution of India cannot be taken away by such sweeping provisions as made and providing such determining factors as envisaged in clauses (b) and (c) of Section 8 of the Act of 2006. He further contends that the dual or triple test to confer the status of minority or a minority educational institution would be the only test whereas such tests  W.P.(C) No.17873/2006 etc. - 200 - as have been placed emanating from clauses (b) and (c) of Section 8 would annihilate the rights of the minorities and would thus be unsustainable. Mr.Vaidyanathan, learned senior counsel appearing for the State would, however, contend that no definition of minority has so far been given and the judgments relied upon by the learned counsel for the petitioners examined the questions on the basis of India consisting of various States based upon language. The specific questions framed, in particular in T.M.A.Pai's case pertaining to factors that may constitute a minority community or a minority institution were left undecided. The State of Kerala, for the first time, has laid tests to determine a minority. The tests as provided would be entirely justified as no minority can be called a minority if it may become far more prosperous than even the so called majority communities. The right provided to minority communities under Article 30 was in consideration of the weak position of such minorities and once such minorities may acquire a status even better than that of majority communities or the institutions established by the minorities may become far more than the  W.P.(C) No.17873/2006 etc. - 201 - institutions established by other communities, the minority communities or the minority institutions would not be entitled for the exercise of their rights under Article 30 further contends the learned counsel.

55. With a view to determine the vexed questions posed for answer it will be first appropriate to take into consideration, the provisions contained in Article 30 of the Constitution which reads as follows:

"30. Rights of minorities to establish and administer educational institutions.-(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1-A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. (2) The State shall not, in granting aid to educational institutions, discriminate against educational institution on the ground that it is under the management of a minority, whether based on religion or language." The exercise of fundamental rights as provided in Part III of the  W.P.(C) No.17873/2006 etc. - 202 - Constitution are by and large subject to reasonable restrictions, but it is interesting to note that the fundamental right enshrined under Article 30 for the minorities to establish and administer educational institutions cannot be curtailed even by reasonable restrictions, but for to the extent as laid down by the Honourable Supreme Court in various judgments to be referred.

56. Before we may delve further on the content and extent of right available to minority communities under Article 30, we may make a mention of some other relevant provisions. According to clause (1) of Article 25 of the Constitution, subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Article 26 gives the right, subject to public order, morality and health, to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with  W.P.(C) No.17873/2006 etc. - 203 - law. Articles 28 to 30 which contain provisions for educational institutions read as follows: "28. (1) No religious instruction shall be

provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or in any premises attached thereto unless such person or, if such is a minor, his guardian, has given his consent thereto".

"29. --(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.". . The Honourable Supreme Court in St. Xaviers College v. State of Gujarat, [1974] INSC 106; AIR 1974 SC 1389, on an analysis of Articles 28 to 30 of the Constitution observed that,  W.P.(C) No.17873/2006 etc. - 204 - "Although the marginal note of

Article 29 mentions protection of minority rights, the rights actually conferred by that article are not restricted merely to the minorities. According to clause (1) of that Article, any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. In order to invoke the benefit of this clause, all that is essential is that a section of the citizens residing in the territory of India or any part thereof should have a distinct language, script or culture of its own. Once that is proved, those citizens shall have the right to conserve their language, script or culture irrespective of the fact whether they are members of the majority community or minority community". xxx xxx xxx.

"Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analysing that clause, it would follow that the right which has been conferred by the clause is on two types of minorities. Those minorities may be based either on religion or on language.". While dealing with the contention raised before the Supreme Court with regard to the scope and ambit of Article 30, the Supreme Court referred to the historical background leading to provide Article 30 of the Constitution. The same reads thus:  W.P.(C) No.17873/2006 etc. - 205 - "Before we deal with the contentions

advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. India is the second most populous country of the world. The people inhabiting this land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on the Indian polity and India today represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissensions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats and separate electorates. In oder to bring about integration and fusion of the different sections of the population, the frames of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to  W.P.(C) No.17873/2006 etc. - 206 - look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made apart of the fundamental rights with a view to instill a sense of confidence and security in the minorities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens. The result was that minorities gave up their claims for reservation of seats". The Supreme Court then referred to the speech delivered on February 27, 1947 by Sardar Patel, who was the Chairman of the Advisory Committee dealing with the right of minority communities, a part of which is reproduced below:

"As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible and liable to be struck down by the courts". The content and extent of the rights of the minorities under Article 30 appears to be unregulated by any restriction, but for as the Supreme Court envisaged in various decisions. It is in the  W.P.(C) No.17873/2006 etc. - 207 - light of the extent and content of this right, the question posed before us is to be examined. In T.M.A.Pai's case, question No.4 pertained to determining factors of existence of religious or linguistic minority in relation to Article 30, whether the State was to be the unit or country as a whole was to be the unit was thus the question. Taking into consideration that the States have been carved out on the basis of language of majority of persons of that region, it was held logical that such determination should be only in relation to the population of a particular State. Taking into consideration Kerala Education Bill 1957 case (supra), D.A.V.College v State of Punjab (1971) 2 SCC 269, and D.A.V.College v State of Punjab (1971) 2 SCC 261, it was held that, "There can, therefore, be little

doubt that this Court has consistently held that, with regard to a State law, the unit to determine a religious or linguistic minority can only be the State". As long as the dual or triple test pertaining to an institution  W.P.(C) No.17873/2006 etc. - 208 - working out for the benefit of its community was complied with, it was held that minorities have a right to establish and administer educational institutions and as mentioned above, the State was to be the unit for determining the minority. The right could be exercised even by a single philanthropic individual who may establish the institution either from his own funds or funds collected from his community. The Government could at the most regulate this right by laying down the educational standards and allied matters. In Inamdar's case, it was held that the term 'minority' has not been defined in the Constitution and it was taking the clue from the provisions of the State Reorganisation Act that it was held in T.M.A.Pai Foundation case that India having been divided into different linguistic States, carved out on the basis of language of the majority of persons of that region, it is the State and not the whole of India that shall have to be taken as a unit for determining a linguistic or religious minority with regard to its right. After taking State as a unit, it has to find out what was the demography and whether the persons speaking a particular language or following a particular  W.P.(C) No.17873/2006 etc. - 209 - religion are less than 50% of the total population, and if that was to be so, the status of religious or linguistic minority has to be given to it. After referring to the judgment in Kerala Education Bill case, it was further held in Inamdar's case that the object underlying Article 30(1) is to see the desire of minorities being fulfilled that their children should be brought up properly and efficiently, and acquire eligibility for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering public services, educational institutions imparting higher instructions including general secular education. Thus the twin objects sought to be achieved by Article 30(1) in the interest of minorities are: (i) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good, general education to children belonging to such minority. So long as the institution retains its minority character by achieving and continuing to achieve the abovesaid twin objectives, the institution would remain a minority institution.  W.P.(C) No.17873/2006 etc. - 210 -

57. In Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540, it was held that the right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institutions, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as  W.P.(C) No.17873/2006 etc. - 211 - a minority institution effective as an educational institution. Such regulations must satisfy a dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. The interpretation on Article 30 of the Constitution is clear and eloquent. The very background of providing rights to minority communities in the matter of running educational institutions and the said right being not subject to any restriction would be clearly suggestive of the fact that once a community is a minority, it would have the right. The Government has indeed declared pursuant to the provisions contained in Section 2(l), the Muslims and Christians to be minority communities. The contention of the learned counsel for the petitioners in challenging clauses (b) and (c) of Section 8 of the Act of 2006 has to be examined in view of the interpretation placed by the Supreme Court on Article 30 as mentioned above.  W.P.(C) No.17873/2006 etc. - 212 -

58. Having given our thoughtful consideration to the question under debate, we have no hesitation whatsoever in returning a firm finding that regulations or determining factors of recognising and conferring the status as unaided minority professional college or institution as envisaged under clauses (b) and (c) of Section 8 would be violative of the rights of the minorities and minority institutions as envisaged under Article 30 of the Constitution. The identifying tests as envisaged in clauses

(b) and (c) of Section 8, even as per the case of the State, would leave no institution in the State of Kerala as a minority institution.

59. Once the Christians and Muslims have been declared to be a minority community in the State of Kerala, the mere fact that such communities have established more institutions than the majority community or the students of that particular community are more than the students of other communities in the State of Kerala cannot whittle down the right enshrined under Article 30 of the Constitution. These  W.P.(C) No.17873/2006 etc. - 213 - identifying factors are not regulative of the educational character of the institution nor pertain to making the institution an effective vehicle of education for the minority communities. These are factors which completely annihilates the rights of the minority even though declared as such. We will hereinafter deal with the contention raised by Mr.Vaidyanathan with regard to the minority institutions losing their right under Article 30 once they become dominant or prosperous, but before we might do that, another aspect of clauses (b) and (c) of Section 8 read with Sec. 10(8) needs to be dealt with.

60. The identifying criteria as contained in clause (b) of Section 8 requires the professional college or institution run by all religious and linguistic minorities to be proportionately lesser than the number of professional colleges or institutions run by the non-minority community in the State. How is this criteria workable is the question. How long this criteria will hold good is further the question. The medical institutions belonging to Christian community as on today may  W.P.(C) No.17873/2006 etc. - 214 - be more than such institutions run by non-minority communities in the State and, therefore, at present Christians would not be a minority having the right to establish and administer their institutions. Next year, if the non-minority communities may open up such number of institutions that they become more than the institutions run by Christian community, would minority character of the institution revert and if, in yet next year the Christian community may open few more colleges so as to become more than the institutions run by non-minority communities, will it once again lose its right under Article 30. The identifying criteria appears to be impracticable, unworkable and temporary. The same would be true even with regard to clause (c) of Section 8. To illustrate, this year if the students of a minority community say Christians are more than the students of the non-minority community, it would lose its right to run the institution as a minority community, but next year if the number of students may become lesser than the non- minority community, would it re-gain its character as a minority institution and still next year if the converse may happen, would  W.P.(C) No.17873/2006 etc. - 215 - the things change again. This criteria again appears to be impracticable, unworkable and temporary. That apart, in view of sub-section (8) of Section 10 of the Act of 2006, an unaided minority institution has to admit not less than 50% of students from the minority community to which the college or institution belongs. On one hand, the Government would insist admission of at least 50% of seats from minority community candidates whereas on the other hand, it would state that the moment the total students of that community in the State are more than 50%, the institution would lose its character as a minority institution. Surely, when the minority institutions are more than the non-minority institutions, admission of 50% of students of that community would make the strength of such students more than the strength of other community students. The provisions contained in Section 8(c) and that of Section 10(8) are mutually inconsistent. The institution will lose its character as a minority institution, though run by a community having the right to establish and administer its  W.P.(C) No.17873/2006 etc. - 216 - institution under Article 30, if the students are less than 50% as also when it is more than 50%. The criteria of allowing unaided minority institutions to be recognised only if the colleges are proportionately less than rest of the non-minority community under Section 8(b) or if the total number of students belonging to minority community is proportionately less than the number of students belonging to non-minority community would destroy the right of minority under Article 30(1). The right of minorities under Article 30 appears to be absolute and subject only to the regulations made by the State for ensuring excellence in education of the institution as held in St.Xaviers case. No other restriction it appears can be imposed upon minorities under Article 30(1). Even though it is true that the observation with regard to State being a unit for determining the minority community came in the background of the States being carved out on linguistic basis and without their being any definition of minority, but the same would appear to be true even without the definition of minority. In any case, such identifying criteria of minorities as envisaged under clauses (b) and (c) of Section 8  W.P.(C) No.17873/2006 etc. - 217 - would be destructive of the right of the minorities to establish and administer the institutions under Article 30(1) of the Constitution. The matter may be looked from another angle. Section 8(b) and 8(c) if applied to the minority communities in exercising their right would make it dependent upon what the non-minorities may do or may not do, for establishing their educational institutions. Can the right of a citizen or a community be dependent upon what other communities may or may not do? The answer appears to be an emphatic no. Yet another contradiction or absurdity in Section 8 is that, it only applies to minority unaided institutions and not to minority aided institutions. The reason why the identifying criteria as envisaged in Section 8 has not been made applicable to minority aided institutions is not forthcoming from the provisions of the Act. It is settled proposition of law that unaided minority institutions have more freedom in running their institutions than that of aided minority institutions. If that be so, the provisions contained in section 8 would be totally irrational and would also come under the vice of Article 14, by not according equal  W.P.(C) No.17873/2006 etc. - 218 - treatment to minority-aided and minority-unaided institutions.

61. Mr.Vaidyanathan as mentioned above has urged that Article 30 is meant to equalize or protect the right of minorities from being deprived by the dominant majority in a democratic set up and if viewed from that angle, Section 8 provides rationale and relevant criteria for determining what is a minority professional institution. The object is to achieve egalitarian, proportionate equality in respect of admissions to professional institutions. There does not appear to be any merit in the aforementioned contention of the learned counsel. The criteria for exercising the right in the matter of establishing and administering the educational institutions is minority and not the status of such minority. For accepting the contention of Mr.Vaidyanathan, there would be indeed requirement of amendment in Article 30 of the Constitution to make their rights dependent upon dominant or affluent status of the minority. That is not so. As long as, therefore, Article 30 is as it is, the contention raised by Mr.Vaidyanathan cannot be accepted, howsoever attractive it may appear to be. There may be some  W.P.(C) No.17873/2006 etc. - 219 - rationality in extending the benefit of Article 30 to a non-dominant minority, but for that, as mentioned above, Article 30 itself has to be amended. Learned counsel however, for the contention mentioned above, has placed reliance upon the decision in Bal Patil v. Union of India, (2005) 5 SCC 690. The facts in Bal Patil's case would reveal that an organisation representing a section of Jain Community approached the High Court of Bombay seeking a writ in the nature of mandamus directing the Central Government to notify the Jains as a minority community under the National Commission for Minorities Act, 1992 (in short, Central Act of 1992). The Minority in the said Act of 1992 has been defined to mean a community notified as such by the Central Government. The High Court, however, disposed of the petition on the ground that the claim of various communities for status of minority for seeking constitutional protection was pending before 11 Judges Bench before the Supreme Court. When the appeal was filed before the Supreme Court, the matter was adjourned from time to time to await the decision in T.M.A.Pai's case. The matter came up for  W.P.(C) No.17873/2006 etc. - 220 - hearing after the decision in Pai's case. At the very outset, the Supreme Court referred to question no.1 and the answer thereto in T.M.A.Pai's case and emphasised that religious and linguistic minorities had to be considered Statewise for the purpose of Article 30 as held in T.M.A.Pai's case. The Central Government took up the stand before the Supreme Court that it was for the State Government to decide as to whether Jain community should be treated as minority community in the respective States and that some of the States had already notified Jain community as a minority. It was urged before the Supreme Court that in the light of the law declared in T.M.A.Pai's case as also in view of the stand taken by the Central Government, the Central Government which is empowered to consider the claim of the particular community for being notified u/s.2(c) of the Central Act of 1992 cannot shirk its statutory responsibility at the national level and the decision in T.M.A.Pai's case would not render the power of the Central Government u/s.2(c) as redundant. The Additional Solicitor General who appeared for the Central Government, however, urged that the Central  W.P.(C) No.17873/2006 etc. - 221 - Government had no role to play and it was for the respective State Governments to take the decision for status of Jains depending upon the social condition in the respective States. The issue involved in the case was as to whether the Central Government would declare a community to be minority community as per the provisions contained in Section 2(c) or State was to do so in the context of the decision given by the 11 Judge Bench in T.M.A.Pai's case. As a preface to its discussion on the question aforesaid, the Supreme Court observed that the expression minority has been used in Articles 29 and 30 of the Constitution, but it has nowhere defined it. The group of Articles 25 to 30 would guarantee protection of cultural, educational and religious rights of both majority and minority communities. According to the Supreme Court, it was not felt necessary to define minority. The minority as per the constitutional scheme would be an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to  W.P.(C) No.17873/2006 etc. - 222 - gain political power in a democratic form of government based on election. In the background of the constitutional scheme, the provisions of the Central Act of 1992, in the view of the Supreme Court, instead of giving definition of minority only provided for notifying certain communities as minorities who would require special treatment and protection of their religious, cultural and educational rights. It was further observed that the definition of minority given under the Act in Section 2(c) was in fact not a definition as such, but only a provision enabling the Central Government to identify a community which in the opinion of the Central Government may deserve for the purpose of protecting and monitoring its progress and development through the Commission. The functions to be performed by the Commission under the Central Act of 1992 were then discussed. In paragraph 17 it was held that,

"Henceforth before the Central Government takes a decision on the claims of Jain as a 'minority' under Section 2(c), the identification has to be done on Statewise basis. The power of the Central Government has to be exercised not merely on the advice and recommendation of the Commission, but on consideration of the social, cultural and religious conditions of the Jain  W.P.(C) No.17873/2006 etc. - 223 - community in each State. Statistical data produced to show that a community is numerically a minority cannot be the sole criterion. If it is found that the majority of members of the community belong to the affluent class of industrialists, businessmen or professionals and propertied class, it may not be necessary to notify them as such and extend any special treatment or protection to them as a minority community. The provisions contained in the group of Articles 25 to 30 are a protective umbrella against possible deprivations of the fundamental right of religious freedoms of religious and linguistic minorities.". The Court then discussed the history culminating into the framing of Articles 25 to 30 and the minority communities that require protection in the historical background, at the time of framing up of the Constitution. There were indeed communities which after the independence of the country required protection.

62. What emerges from the observations in Bal Patil's case is that the question that was under consideration pertained to whether the declaration of Jain community as a minority community under Section 2(c) of the Central Act of 1992 should be done at the national level or should it be Statewise. Whereas, the contention of the learned counsel appearing for the Jain Community was that the Commission should declare the Jain  W.P.(C) No.17873/2006 etc. - 224 - community to be a minority community at the national level, the Central Government took the stand that in view of the judgment in T.M.A.Pai case, it had to be done at the State level. The question was not the status of a community being minority or otherwise dependent upon its affluence or dominant character. Further, it was in the context of Act of 1992 that it was held that determination has to be made as to which minority would deserve to be so declared. A distinction between minority communities, pre-1950 and thereafter was made and it was held that it was not in the contemplation of the framers of the Constitution to add to the list of minorities. No doubt, in paragraph 17, there are observations of affluent minority community, but the said reference was in the context of 1992 Act. That apart, the sole factor that Muslims and Christians had established more educational institutions than that of majority communities may not necessarily be indicative of the fact that the Muslims and Christians minority community as such consists of big industrialists, businessmen, professionals and propertied class in the State of Kerala. The religious minority institutions  W.P.(C) No.17873/2006 etc. - 225 - are not necessarily established by industrialists, businessmen or professionals. Most of the institutions may have been established by philanthropists by collecting donations. Mr.Beeran, learned counsel appearing in I.A.No.15407 of 2006 in W.P.(C) No.17969 of 2006 on behalf of the additional 4th respondent, i.e. President, of Travancore Educational Society, the object of which is the upliftment of the members of the Muslim Community and other backward classes contends that Muslim Community is backward in educational field as well as in civil services. It is stated in the application that from some media reports the Society has come to know that the stand of the Government before this Court is that Muslim minority community has got sufficient seats in Medical Colleges and other professional colleges proportionate to their population in the State and hence they are educationally forward. Mr.Beeran contends that the said stand taken by the Government is based on some false and misleading information and datas. It is stated that as per last 2001 census, 24.73 of the total population of the State is Muslims. The present position of the Muslim community  W.P.(C) No.17873/2006 etc. - 226 - is very backward in the field of education and has also very poor representation in the State and Subordinate Services. As per report dated 9.11.2001 of the Justice K.K.Narendran Commission, which was appointed to study and report on the adequacy or otherwise of representation of backward classes in the service under the State Government, Public Sector Undertakings, autonomous bodies and institutions under State Governments including Universities, the Muslim community have got only a total of 10.45% representation in all categories of posts in public services. The report says that their representation in Category 1 is only 10.03 as against a reservation quota of 10%, in Category 2 their representation is 10.66 as against a quota of 12% and in Categories 3,4,5, and 6, their representation is 9.85, 11.63, 9.94, and 9.71 respectively as against their quota of 12 percent in each category. The Commission further observed that Muslims have not fared well in the matter of securing posts in public service and the main reason for this is nothing but educational backwardness. The Commission suggested that it is for the Government to take  W.P.(C) No.17873/2006 etc. - 227 - appropriate action to minimise this deficiency in the years to come. Mr.Beeran also relies on the report of Justice Rajinder Sacher Committee appointed by the Prime Minister, according to which the members of the Muslim community lag behind in every field throughout India. The statement of facts made in the impleading application has not been controverted by the State. We are, however, not inclined to return a finding on the contention raised by Mr.Beeran. Suffice it to say that there is no material brought on record by the State to show that the Christian and Muslims in the State of Kerala are a developed and rich community, socially or financially. The State has not chosen to supply any material nor it has even averred that Christians and Muslims in the State are affluent or more dominating than the majority community. The State, we are further of the opinion, having itself declared Christians and Muslims to be a minority in the State of Kerala would not be permitted to say that because of these minority communities having established more institutions or having more students would not be minorities and even if a minority, would have no  W.P.(C) No.17873/2006 etc. - 228 - right as available to them under Article 30 of the Constitution of India. It is significant to mention that in T.M.A.Pai's case, Hon'ble Justice Quadri did opine that word 'minority' would literally mean non-dominant group, but that was not the majority view. The same was also not accepted to be an indicia for the definition of religious minority in Inamdar's case. The contention raised by Mr.Vaidyanathan justifying Section 8(b) and (c) on the basis of the observations contained in Bal Patil's case are repelled. Occupied Field & Repugnancy with Central Acts

63. Clauses (b) and (c) of Section 8 have been challenged on yet another ground. It is urged by the learned counsel for the petitioners that the provisions aforesaid are repugnant to the National Commission for Minority Educational Institutions Act, 2004 (Central Act 2 of 2005), as amended by the Central Act 18 of 2006. The right to establish a minority institution is now a matter under Section 11 of the Central Act 2 of 2005. The field is now stated to be occupied by Central legislation. Act 19 of 2006 enacted by the State of Kerala would be repugnant to the Central Act 2 of 2005 as amended in 2006,  W.P.(C) No.17873/2006 etc. - 229 - as per the provisions contained in Article 254(2) of the Constitution of India. Education by virtue of 42nd Amendment to the Constitution is under the Concurrent List under Entry 25. Entry 25 of List III, i.e. Concurrent List, reads as follows: "Education, including technical

education, medical education and Universities subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour". As a result of insertion of Entry 25 in List III, the Parliament can also legislate in relation to technical education and medical education. Technical education would surely include Engineering, Nursing and Teaching. Before insertion of Entry 25 in the Concurrent List, the field was occupied by the State Legislature, but as mentioned above, now the Parliament can also legislate in matters on education. The provisions contained in Article 254 of the Constitution would reveal that Parliament may legislate on all or any type of matters enumerated in Entry 25 of List III, on which the State too would have the power to do so, and the law made by Parliament shall prevail but only if it may be in conflict with the law laid down by the State. The State law, in other  W.P.(C) No.17873/2006 etc. - 230 - words in that situation, would to the extent of repugnancy be void. This position will be made clear from the provisions of Article 254 of the Constitution which reads as follows:

"(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.". Subject to the provisions of clause (2) of Article 254 of the  W.P.(C) No.17873/2006 etc. - 231 - Constitution of India, if the law made by the State Legislature is repugnant to any law made by Parliament, the law made by the State Legislature shall be repugnant. Act 19 of 2006 made by Kerala has not received the assent of the President of India. If the provisions contained in Sections 8(b) and 8(c) of the Act 19 of 2006 may be repugnant to some provisions of law contained in Central Act 2 of 2005 as amended in 2006, the said provisions would be repugnant. To evaluate the contention raised by the counsel for the petitioners, however, the provisions of Central Act 2 of 2005 as amended in 2006 relied upon by the counsel for the petitioners need a necessary mention.

64. 'College' has been defined under clause (b) of Section 2 to mean a college or teaching institution (other than a University) established or maintained by a person or group of persons from amongst a minority community. 'Commission' as per clause (c) of Section 2 has been defined to mean a National Commission for Minority Educational Institutions constituted under section 3. 'Minority' has been defined under clause (f) of Section 2 to mean a community notified as such by the Central  W.P.(C) No.17873/2006 etc. - 232 - Government. 'Minority Educational Institution' as per Section 2

(g) means, a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities. Section 10 dealing with the right to establish a minority educational institution reads as follows: "10.(1) Any person who desires to establish

a Minority Educational Institution may apply to the Competent Authority for the grant of no objection certificate for the said purpose. (2) The Competent authority shall, -

(a) on perusal of documents, affidavits or other evidence, if any; and

(b) after giving an opportunity of being heard to the applicant, decide every application filed under sub- section (1) as expeditiously as possible and grant or reject the application, as the case may be: Provided that where an application is rejected, the Competent Authority shall communicate the same to the applicant. (3) Where within a period of ninety days from the receipt of application under sub-section (1) for the grant of no objection certificate, -

(a) the Competent authority does not grant such certificate; or

(b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the competent authority has granted a no objection  W.P.(C) No.17873/2006 etc. - 233 - certificate to the applicant. (4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force. Explanation.- For the purpose of this section, -

(a) "applicant" means any person who makes an application under sub-section (1) for establishment of a Minority Educational Institution;

(b) "no objection certificate" means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution.". Section 11 dealing with the functions of the Commission reads thus:

"11.Notwithstanding anything contained in any other law for the time being in force, the Commission shall -

(a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it;

(b) enquire, suo motu, or on a petition presented to it by any Minority Educational Institution, or any person on its behalf into complaints regarding deprivation or violation  W.P.(C) No.17873/2006 etc. - 234 - of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation;

(c) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;

(d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation;

(e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;

(f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;

(g) make recommendations to the appropriate Government for the effective implementation of programmes and schemes relating to the Minority Educational Institutions; and

(h) do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission.". Section 12B dealing with the power of the Commission to decide the minority status of an educational institution reads as follows:  W.P.(C) No.17873/2006 etc. - 235 - "12B.(1)Without prejudice to the provisions

contained in the National Minority Commission Act, 1992 (19 of 1992), where an authority established by the Central Government or any State Government, as the case be, for grant of minority status to any educational institution rejects the application for the grant of such status, the aggrieved person may appeal against such order of the authority to the Commission. (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order communicated to the applicant: Provided that the Commission may entertain an appeal after expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period. (3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed. (4) On receipt of the appeal under sub- section(3), the Commission may, after giving the parties to the appeal, an opportunity of being heard, decide on the minority status of the educational institution and shall proceed to give such directions as it may deem fit and, all such directions shall be binding on the parties. Explanation.- For the purposes of this section and section 12C, 'authority' means any authority or officer or commission which is established under any law for the time being in force or under any order of the appropriate government, for the purpose of granting a certificate of minority status to an educational institution.  W.P.(C) No.17873/2006 etc. - 236 - Section 12C deals with the power to cancel the status of minority. The same reads thus:

"12C. The Commission may, after giving a reasonable opportunity of being heard to a Minority Educational Institution to which minority status has been granted by any authority or Commission, as the case may be, cancel such status under the following circumstances, namely:-

(a) if the constitution, aims and objects of the educational institution, which has enabled it to obtain minority status has subsequently been amended in such a way that it no longer reflects the purpose, or character of a Minority Educational Institution;

(b) if, on investigation of the records during the inspection or investigation, it is found that the Minority Educational Institution has failed to admit students belonging to the minority community in the institution as per rules and prescribed percentage governing admissions during any academic year.". Title of the Central Act 2 of 2005 is indicative of the fact that it deals with minorities in the context of educational institutions. The Act came with a view to constitute National Commission for Minority Educational Institutions and to provide for matters connected therewith and incidental thereto as would be clear from the Preamble of the Act. The Act extends to the whole of India, except Jammu and Kashmir. The Act came into force on  W.P.(C) No.17873/2006 etc. - 237 - 11th November, 2004. 'College' as mentioned above means a college or teaching institution (other than a University) established or maintained by a person or group of persons from amongst a minority community. 'Commission' means a National Commission for Minority Educational Institutions by virtue of Section 2(b). 'Minority' for the purpose of the Act means a community notified as such by the Central Government. 'Minority Educational Institution' means, a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities. The Competent Authority on production of documents and other materials as mentioned above and after giving an opportunity of being heard would decide the application and grant or reject the same. The rejection has to be communicated. Section 10(3) of the Act is a deeming provision. It states that where within ninety days from the receipt of application for the grant of no objection certificate, the Competent authority does not grant such certificate; or where an application has been rejected and the same has not been communicated to such applicant, it shall be  W.P.(C) No.17873/2006 etc. - 238 - deemed that the competent authority has granted a no objection certificate to the applicant. On grant of a no objection certificate or even in a case where the competent authority may be deemed to have granted no objection certificate, the applicant would be entitled to commence and proceed with the establishment of a minority educational institution in accordance with the rules and regulations as may be laid down or under any law for the time being in force. Section 10A deals with the right of the minority educational institution to seek affiliation. Section 11 deals with the functions of the Commission. The Commission would advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it. The Commission would enquire, suo motu, or on a petition presented to it by any Minority Educational Institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation. The report and its findings have then to be submitted by the Commission to the appropriate  W.P.(C) No.17873/2006 etc. - 239 - Government for implementation. It has the power even to intervene in pending proceedings involving deprivation or violation of the educational rights of the minorities before a court with the leave of such court. The Commission has also the power to review the safeguards provided by the Constitution or any law for the time being force for the protection of educational rights of the minorities and recommend measures for their effective implementation. The Commission can also specify the measures to promote and preserve the minority status and character of institutions of their choice established by the minorities. The Commission has power as provided in clause (f) of Section 11 to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such.

65. Relying on the provisions of the Central Act 2 of 2005, as enumerated above and in particular Section 11(f) counsel appearing for the petitioners would contend that once the Commission under Section 11(f) is clothed with the power to  W.P.(C) No.17873/2006 etc. - 240 - decide the status of an institution as a Minority Institution and declared it as such, the provisions as envisaged in clauses (b) and (c) of Section 8 of the Act 19 of 2006 would be repugnant. Mr.Vaidyanathan, learned counsel representing the State, per contra, however contends that the Central Act would not deprive the State of its legislative power under Articles 245 and 246 in matters related to Entry 25 of the Concurrent List. The National Commission has not been vested with the power to determine the criteria for recognising a minority institution. On the other hand, the Central Act has recognised the Central and State authorities to make such determination and that the power u/s.11(f) and 12(b) is judicial. The pith and substance of the State Act is different from the Central Act. Learned counsel further contends that every effort should be made to reconcile and harmonise the Central and State Act and only if that is not possible, the State Act would be held to be repugnant and unconstitutional.

66. We have given our anxious thought to the rival contentions raised by the learned counsel as noted above, but in  W.P.(C) No.17873/2006 etc. - 241 - the context of the provisions contained in the Central Act, the provisions of clause (b) and (c) of Section 8 of the Act 19 of 2006 may appear to be bordering on transgressing such provisions, but it do not however, actually transgress the same. In so far as minority under the State Act is concerned, the same for the purpose of the Act means a community belonging to a religious or linguistic minority as may be determined by Government taking the State as a unit. By notification dated 6.12.2006, even though after the judgment was reserved, the Government passed an order declaring that Christians and Muslims in the State will be treated as Minorities. The Government of India also by notification dated 18th January, 2005 in exercise of the powers conferred by Section 2(f) of Central Act 2 of 2005 has notified Muslims and Christians as minority communities. Thus, in the matter of Muslims and Christians to be a minority community, there is no repugnancy. In fact, the same are identical. No determination has been done by the State under Section 2 (m) with regard to minority professional college or institution, even though minority  W.P.(C) No.17873/2006 etc. - 242 - professional college or institution means a professional college or institution established and maintained by a minority that may fulfil the non-discriminatory criteria as laid down in the Act. Under the Central Act, a Minority Educational Institution means a college or institution established or maintained by a person or group of persons from amongst the minorities. There will be once again no difference in so far as minority institutions are concerned, be it the Central or the State Act. It is only by virtue of Section 11 that deals with the functions of the Commission and clause (f) thereof by which one of the functions to be decided by the Commission is the status of an educational institution as a minority educational institution and declare its status as such, that it is being urged that the field with regard to status of a minority educational institution if it is determinable by the Central Act, the field would be occupied. Therefore, such identifying factors in clauses (b) and (c) of Section 8 of the State Act would be repugnant to Section 11(f) of the Central Act. We have already mentioned that provisions contained in clauses

(b) and (c) of Section 8 of the State Act may appear to be  W.P.(C) No.17873/2006 etc. - 243 - bordering on transgression when read with the power of the Commission under Section 11(f) of the Central Act, but there may not be any apparent conflict between the same. There are no provisions in the Central Act which may prescribe the determining criteria for a minority institution. There are no provisions either which may mention factors that may lead not to clothe any minority institution with that status. It is true that the Commission can decide the status of an educational institution as a minority educational institution, but as to what criteria has to be taken into consideration for so determining finds no mention in any of the provisions of the Central Act. The Central Act does not legislate on determining or non-determining factors of the status of a minority educational institution. It is one thing to say that the field is occupied so as to decide the status of an institution, but another thing to say that what are the governing factors. If perhaps, there was some provision in the Central Act specifying the determining or non-determining factors of the status of minority educational institution and such factors were against or contrary to those specified in clauses (b)  W.P.(C) No.17873/2006 etc. - 244 - and (c) of Section 8 of the State Act, the contention raised by the counsel for the petitioners could have been accepted. It is settled proposition of law that there has to be a conflict between the provisions legislated by the Parliament and the State. The conflict has further to be on same matter. The Supreme Court in Vijaya Kumar Sharma v. State of Karnataka, [1990] INSC 60; (1990) 2 SCC 562, held thus: "It is open to resolve the conflict

between two entries in different lists, viz. the Union and the State List, by examining the dominant purpose and therefore the pith and substance of the two legislations, there is no reason why the repugnancy between the provisions of the two legislations under different entries in the same list, viz., the Concurrent List should not be resolved by scrutinizing the same touchstone. What is to be ascertained in each case is whether the legislations are on the same subject matter or not.". Mr.Vaidyanathan, for the proposition that the Central Act does not deprive the State of its legislative powers under Articles 245 and 246 with regard to items contained in Entry 25 of List III and there is no conflict between the provisions contained in Section 11 (f) or any other provision of the Central Act with  W.P.(C) No.17873/2006 etc. - 245 - provisions of Section 8(b) and (c) of the State Act, and that the Court should make every effort to reconcile and harmonise the provisions of the Central and State Act and has relied upon the decisions in Dr.Preethi Srivastava v. St ate of M.P. (1999) 7 SCC 720, State of A.P. v. K.Purushotham Reddy (2003) 9 SCC 564, State of T.N. v. S.V.Pratheep and others (2004) 4 SCC 513, B harat H ydro Power C orpn. L td. and others v. State of Assam(2004) 2 SCC 553 and Government of A.P. v. J.B.Educational Society (2005) 3 SCC 212. In all fairness, we may mention that learned counsel for the petitioners have also relied upon various judicial precedents, but there may be no need to refer to the same, as, to hold the State Law to be repugnant under Article 254 of the Constitution a conflict between the Central and State Act has to be shown and none of the judicial precedents cited by the counsel for the petitioners have taken a different view. In view of the discussions made above, it has to be held that the provisions of Section 2(f) of the Central Act and the one contained in Section 8(b) and (c) of the State Act are not in conflict and that being so, the contentions  W.P.(C) No.17873/2006 etc. - 246 - with regard to occupied field and repugnancy raised by the learned counsel for the petitioners have to be repelled and we do so.

67. Mr. Vivek Tanka, learned counsel appearing for the petitioners in W.P.(C) No.17969 of 2006 and connected cases, which are filed by institutions running Engineering Colleges has raised a similar argument in the context of the provisions contained in the All India Council of Technical Education Act, 1987. Learned counsel states that technical education, which includes Engineering, as per Section 2 (g) of the Act aforesaid are covered by the Act of 1987, which is a central legislation and once the Council constituted under the Act has power to co-ordinate the development of technical education in the country at all levels [S.10-b], formulate schemes for promoting technical education for women, handicapped and weaker sections of the society [S.10-e], lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assessment and examinations [S.10-i]; fix norms and guidelines  W.P.(C) No.17873/2006 etc. - 247 - for charging tuition fees [S.10-j]; grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned [S.10- k]; lay down norms for granting autonomy to technical institutions[S.10m]; take all necessary steps to prevent commercialisation of technical education [S.10-n]; provide guidelines for admission of students to technical institutions and Universities imparting technical education[S.10(o)], the field would be covered by Central Legislation, and the provisions pertaining to fee structure and regulation of admissions as made in the State Act would be repugnant. Counsel, for the said proposition, relies upon the decisions of the Supreme Court in State of Tamil Nadu v. Adhiyaman Educational & Research Institute [1995] INSC 194; (1995) 4 SCC 104, Jaya Gokul Educational Trust

v. Commissioner and Secretary to Government Higher Education Department (2000) 5 SCC 231, State of A.P. v. K.Purushotham Reddy (2003) 9 SCC 534, Bharathi Vidyapeeth v. State of Maharashtra (2004) 11 SCC 755, Dr.Preeti Srivastava v. State of M.P. (1999) 7 SCC 120 and  W.P.(C) No.17873/2006 etc. - 248 - Prof.Yashpal v. State of Chattisgarh (2005) 5 SCC 420. The rules and regulations as made under the Central Act of 1987 that have been shown to us would only depict regulation of admission, fee structure, etc., in the light of the decision given by the Supreme Court in T.M.A.Pai's case, Islamic Academy's case and Inamdar's case. If the provisions contained in the State Act may be against the judgment of the Supreme Court in T.M.A.Pai's case, Islamic Academy's case and Inamdar's case, the same would be otherwise also illegal and therefore, there will be no need to further delve on the contention raised by Mr.Vivek Tanka. No provision of the Act of 1987 we may however mention, that be in conflict with the provisions of the State Act has been brought to our notice. For parity of reasons noticed while rejecting the contention based on the Central Act 2 of 2005, the contention raised by Mr.Vivek Tanka is also to be repelled. We do so. Fixation of minimum 50% seats for minority

68. Section 10 of the Act 19 of 2006 is also under severe challenge. It has been challenged in two parts. The first  W.P.(C) No.17873/2006 etc. - 249 - is attack on Section 10(8) whereas the second part of attack pertains to quotas or reservations. We will first deal with the criticism levelled by the learned counsel for the petitioners on the provisions contained in Section 10(8) of the Act. A minority unaided professional college or institution shall admit not less than 50% of students from within the State from the minority community to which the college or institution belongs. This is the first part of Section 10(8). The other part of Section 10(8) is that from amongst the 50% seats, 50% of seats may be filled from within the minority community on the basis of merit-cum- means basis and rest in the order of merit in accordance with inter se merit. The second part of Section 10(8) shall be taken for discussion along with other provisions of Section 10 of the Act of 2006.

69. It is the case of the petitioners that Section 10(8) is destructive of the right of the minority communities to establish and administer educational institutions of their choice. It obliges the minority institutions to admit not less than 50% students from within the State from the minority community to  W.P.(C) No.17873/2006 etc. - 250 - which the institution belongs. If the minority educational institutions fails to or is unable to obtain such a strength from its own community, it would not be recognised as a minority educational institution. It is urged by the learned counsel for the petitioners that it is common knowledge that the minority educational institutions even if they make all out efforts, may not be able to secure 50% admission from their own community. The provisions is also stated to be unreasonable, unworkable and would vary from year to year. Mr.Vaidyanathan, learned counsel for the State, on the other hand would contend that obligation of the institution under Section 10(8) to admit not less than 50% from the minority community to which the college belongs is not violative of Article 30 of the Constitution. The right under Article 30(1) is a preferential right of minority institution to admit students of its community. This obligation is intended to ensure that the institution retains its minority character by achieving the twin objects of Article 30(1) enabling the minority to conserve its religion and language and to give a thorough, good, general  W.P.(C) No.17873/2006 etc. - 251 - education to children belonging to such minority. So long as the institution retains its essential character by achieving the said objectives, it would remain a minority institution.

70. We have once again given our anxious thoughts to the provisions contained in Section 10(8) and in our considered view, the same are not only impracticable, unworkable but also an ever-changing phenomena. It is also an unreasonable restriction wholly impermissible either by virtue of the provisions contained in Article 30 of the Constitution or by judicial precedents governing the field.

71. The population of Christians and Muslims in the State of Kerala is roughly 20% each. Even though no material has been placed before us by the Government justifying minimum 50% admission by the institutions from their own community, one can make a reasonable guess that the students seeking admission in professional colleges would normally be commensurate to its population. Irrespective of the population of a particular community in the State, irrespective of how many institutions a particular community has established, irrespective  W.P.(C) No.17873/2006 etc. - 252 - of as to what is the normal ratio of admission of students belonging to minority or non-minority communities, a fixed formula as the one under Section 10(8) of the Act 19 of 2006 does appear to be wholly impracticable and unworkable. To illustrate, if in a particular State there may be very scanty population of a particular community and number of students seeking admission may be handful; Would such religious or linguistic minority lose its right to establish and administer its educational institutions. In the State of Kerala itself, the population of Sikhs as per the census of 1991 is 2224 which comes to 0.01% of the population. So would be Jains who had a population of only 0.01%. Would religious minorities like Sikhs and Buddhists have no right of establishing and administering educational institutions. Surely, if the fixed formula as provided in Sect ion 10(8) is to be adhered to, their right under Article 30 would stand forfeited. In no case, they shall be able to admit 50% of students from their community because such number of students are not available. To illustrate the impracticability of Section 10(8), we may further give an  W.P.(C) No.17873/2006 etc. - 253 - illustration. In a given academic year, say 2006-2007, an institution run by a religious minority may be able to secure 50% of admissions from its community. In the academic year, 2006-2007, it would be a religious minority, capable of exercising its right under Article 30(1). For the next academic year, 2007-2008, it may not be able secure 50% admission from its community and for that year it will lose the right available to it under Article 30(1) of the Constitution. In the next academic year, 2008-2009, they may again be able to secure 50% admission from its community. Its character as a minority institution shall be again restored. Would any institution in such a situation be able to work its affairs. The clear and only answer appears to us is an emphatic no. Having tested Section 10(8) in the context of unworkability and impracticability, time is now ripe to test the provisions of the Act on the anvil of judicial precedents.

72. In St.Stephen's College v. University of Delhi, (1992) 1 SCC 558, one of the questions, i.e., the third question, that came up for discussion was whether St.Stephen's  W.P.(C) No.17873/2006 etc. - 254 - College and the Allahabad Agricultural Institute were entitled to accord preference to or reserve seats for students of their own community and whether such preference or reservation would be invalid under Article 29(2) of the Constitution. It was held that minority educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standards. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve, but in no case such intake shall exceed 50 per cent of the annual admission. The Supreme Court was dealing with a minority but aided institutions which would have far more control on them by way of regulations framed by the Government than that of minority unaided institutions. It is interesting to note that the law as mentioned above was laid down in the context of challenge posed by non-minority candidates for their admission in such institutions in the context of their right under Article 29 of the Constitution which prohibits any distinction on the basis of religion, race,  W.P.(C) No.17873/2006 etc. - 255 - caste, language or any of them, in the matter of admission into any educational institution which was receiving aid out of State fund. The bare minimum facts which need a necessary mention would show that St.Stephens College, Delhi and Allahabad Agricultural Institute at Naine were two of the premier and renowned institutions in the country. Both were aided educational institutions and were getting grant from the State fund. However, they would have their own admission programme providing for giving preference to Christian students. The validity of the admission programme and the preference given to Christian students were the issues that were to be resolved. The Supreme Court examined the right of the citizen to get education untrammelled by religion, race, caste, language etc. on the basis of the right under Article 29 of the Constitution whereas the management sought to defend their preferential treatment in the matter of admission of students from its community on the basis of Article 30. The Supreme Court while harmoniously interpreting the two provisions held that a balance has to be struck. While holding that no distinction could be  W.P.(C) No.17873/2006 etc. - 256 - made between citizens on the ground of religion, race, caste or language in view of Article 29(2), it was further held that the said article would not mean that it was intended to nullify the special rights granted to minorities under Article 30(1). It was in that context it was held that such institutions may not be permitted to admit more than 50% from their community. The embargo is on the maximum number of students i.e. 50% who could be admitted to such institutions. In T.M.A.Pai's case it was observed that, St.Stephen's case endeavoured to strike a balance between the two articles and even though the ratio in St.Stephen's case holds the field for over a decade, there were compelling reservations in not accepting the rigid percentage stipulated therein. As Articles 29 and 30 applied not only to institutions of higher learning, but also to schools, a ceiling of 50% was held to be not proper and it would be more appropriate, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise and on the population and educational needs of the area in which the institution is to be located, the  W.P.(C) No.17873/2006 etc. - 257 - State properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. The observations in St.Stephen's case as clarified in T.M.A.Pai's case that fixing of a maximum limit of 50% which is not held to be a rigid one was arrived at as mentioned above, by reconciling the rights of the students under Article 29(2) and the right of the minority institutions under Article 30 of the Constitution, pertaining to institutions receiving aid. In the present case, the embargo is on admission of a minimum 50% of students of the religious community and that also for those institutions which are unaided. It has been clearly held in T.M.A.Pai's case that as long as the educational institution whether belonging to minority or majority community, does not receive aid, it would be its right and discretion to grant admission to such students as it chooses or selects subject to the clarification made above. The clarification is only with regard to the dual or triple test.

73. Mr.Vaidyanathan would however, rely upon the  W.P.(C) No.17873/2006 etc. - 258 - observations in T.M.A.Pai's case in paragraph 153. The aided linguistic minority institutions, it has been observed, is given the right to admit students belonging to the linguistic minority to a reasonable extent only to ensure that its minority character is preserved and that the objective of establishing the institution is not defeated. If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of minority community. It has further been held that, students of that group residing in the State in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that State is concerned. In other words, the predominance of linguistic students hailing from the State in which the minority educational institution is established should be present and the management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining State in which they are in a majority under the facade of the protection given under Article 30(1). The counsel would further rely upon the observations made in paras 101 and 102 in Inamdar's case.  W.P.(C) No.17873/2006 etc. - 259 -

74. In paragraph 100 of Inamdar's case, the Supreme Court was dealing with the nature of right conferred by Articles 29 and 30, where it was observed that the same stood more clarified and reconciled inter se as also with other articles, if only it was understood that these two articles were intended to confer protection on minorities rather than a right as such. It was then in paragraph 101 that the complex question of transborder reservation was considered and it was observed that State is to be the unit for the purpose of deciding the minority. By this declaration of law, certain consequences would follow. Every community in India would become minority because in one or the other State, it would be a minority religious or linguistic The question would be what would happen if a minority belonging to a particular State establishes an educational institution in that State and administers it but for the benefit of members belonging to that minority domiciled in the neighbouring State where that community is in majority. Such an exercise would be fraud on the Constitution. In paragraph 102, while referring to the observation in T.M.A.Pai's case, it  W.P.(C) No.17873/2006 etc. - 260 - was observed that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State, else its character of minority institution would be lost.

75. Having examined the contentions of Mr.Vaidyanathan, we however find that the counsel relies on observations which have been made in an entirely different context. The observations made in paragraph 153 of T.M.A.Pai with regard to the obligation of the institution to admit the bulk of the students fitting into the description of the minority community or students of that group from that State, it appears was made in the context of cross-border admission. So is also true with regard to the observations made and relied upon by Mr.Vaidyanathan in paras 101 and 102 of Inamdar's case. The practice adopted by the institutions have shown that they will make admissions from across the border of the State where the concerned religious minority was not a minority. The State has to be the unit for determining the minority and it would be possible that a minority in Kerala may not be a minority in  W.P.(C) No.17873/2006 etc. - 261 - Karnataka. Surely, if the religious minority institution is given right to make admission even though of minority community which are a majority in the other State, it would be a fraud on the Constitution. It is in that context the observations came to be made that bulk or majority of admission of minority community has to be from within the State where the community is a minority. Despite the observations made above, it has further been observed that there could be a sprinkling of admissions from across the border. There observations cannot at all be construed to mean that the minority institutions aided or unaided must necessarily admit 50% of its students from within the community in that State. It may be recalled that converse argument that minority institutions may not deny admission to students of other communities was upheld, even though the two provisions contained in Articles 29 and 30 were reconciled. If a converse contention of giving admission to non- minority community students was upheld, it cannot be a law that minimum students admitted by minority institutions must be 50%. What appears to be the correct situation culled out from  W.P.(C) No.17873/2006 etc. - 262 - the various Supreme Court decisions is that the intake of community students in the concerned institution has to be dependent upon variety of factors like what kind of institution it is, whether primary, secondary, high school or professional or otherwise, the population of that community in the State and to the need of the area in which the institution is to be located. It is by considering all these factors that the State may fix a minimum intake of minority and non-minority students. It is only in consideration of the factors as mentioned above, the ratio of minority community and non-minority community students for admission may be and can be determined. A fixed percentage such as the 50% as a minimum limit of admission of students of the same community would not be correct and therefore any regulation or any provision of law such as Section 10(8) shall have to be held to be unworkable, unreasonable, impractical as also against the rights of minority institutions conferred on them under Article 30 of the Constitution.  W.P.(C) No.17873/2006 etc. - 263 - Fixation of Quotas

76. Section 10 of the Act 19 of 2006 has been challenged with regard to all its main provisions. We have already dealt with challenge to the first part of sub-section (8) of Section 10. The challenge to the other part of sub-section (8) and other sub-sections of Section 10 is to be considered now. We have already reproduced Section 10 in its entirety as also the supporting rules with regard to items provided under Section 10. Section 10 pertains to all kinds of institutions, viz., minority; non-minority; aided or unaided. It will be first useful to trace allotment of seats as may pertain to professional colleges or institutions other than minority. This would cover non-minority professional colleges, whether aided or unaided. In this category as well, it will be first useful to only examine the rules with regard to non-minority but unaided college or institutions. Every institution that we are dealing with is an unaided one, the distinction is thus between minority and non-minority, and that is why all these institutions are known as Self Financing. For understanding the scheme of Section 10, it will be useful to  W.P.(C) No.17873/2006 etc. - 264 - make a grid of 100. It would be seen that Section 10(1) would relate to all colleges or institutions other than minority. In so far as professional college or institution which is a non-minority but is unaided is concerned, under item (a) 10% of total sanctioned seats out of 100 shall be earmarked/reserved for Scheduled Castes and Scheduled Tribes; under item (b) 25% of the total sanctioned seats shall be earmarked/reserved for other socially and educationally backward classes and under item (c) 3% of the total sanctioned seats shall be earmarked/reserved for physically challenged persons and under item (d) 12% of the total number of sanctioned seats shall be earmarked/reserved for the other sections of society not covered under items (a), (b) and (c) of sub-section (1) on merit-cum-means basis. This would make a reservation of 50%. By virtue of the first proviso to sub-section (1) of Section 10, an unaided professional college or institution would have an option to make reservation of 3% for physically challenging persons and 12% for other sections of society not covered by items (a), (b) and (c), on merit cum means basis. In other words, the reservation as provided under  W.P.(C) No.17873/2006 etc. - 265 - items (c) and (d) is to be provided only on consensus, on the basis of mutual agreement arrived at between the institution and the Government, which shall have to follow the principles as may be prescribed. By virtue of the second proviso to Section 10(1), admissions contemplated under items (b), (c) and (d) have to be made in compliance with the rules as may be prescribed. As per Rule 10(2), every professional college or institution shall intimate its consent for admission of candidates under items (c) and (d) of Section 10(1) within the time limit prescribed by Government. As per Rule 10(3), if the managements may not convey their consent within the time limit prescribed, it shall be deemed that consent has been duly given for admissions under items (c) and (d) of Section 10(1). By virtue of the provisions contained in Section 10(2), 15% of seats in an unaided professional college both from minority and non-minority can be filled by candidates in the category of Non-Resident Indians. The seats however, not filled in that category would be filled from general merit. 15% of seats in an unaided professional college both from minority and non-minority may be filled by  W.P.(C) No.17873/2006 etc. - 266 - candidates in the category of privilege seats and seats not filled in that category would be filled from general merit. 18% of total number of sanctioned seats in an unaided minority institution shall have to be filled from general merit quota by virtue of Section 10(4). 2% of sanctioned seats have to be filled up from among students who have made outstanding contribution in the field of culture or sports. It would thus be seen that in a grid of 100, in so far as unaided non-minority professional colleges are concerned, there would be reservation of 82%. Out of 82%, 10% would be for SC/ST, 25% for Socially and Educationally Backward classes, 3% for physically challenged persons, 10% for other sections of society on merit cum means basis, 15% for Non-Resident Indians, 15% for privilege seats and 2% for outstanding contribution in sports or culture. It is no doubt true that reservation as provided in items (c) and (d) i.e. 3% for physically challenging persons and 12% for other sections of society on merit cum means basis has to be determined by consensus arrived at on the basis of mutual agreement between the institution and government as per first proviso to Section  W.P.(C) No.17873/2006 etc. - 267 - 10(1). We shall deal with this consensual or mutually agreed reservation later in point of time and would at this stage consider the matter when all options may be exercised by the college in making such reservation. It is apparent that if the options are made to all the categories, it would come to 82%. If however, there may not be any mutual consensus on the reservations provided in items (c) and (d) of sub-section (1) of Section 10, the reservation would come to 67%. The unaided professional college may not fill seats under NRI category. It may not also fill up 15% privilege seats. In that case, the compulsory reservation would come to 37%. We would deal with the situation when the institutions may not opt for reservation in various categories as mentioned above but once such option is available and it is exercised, as mentioned above, the reservation would go to 82%. The questions in the context of various kinds of reservations and percentage thereof would be whether there is any reservation which may be impermissible and may not have the sanction of Article 15(5) of the Constitution, even as inserted; as also whether such percentage  W.P.(C) No.17873/2006 etc. - 268 - of reservation is permissible in view of various judicial precedents holding the field. We shall first deal with Sections 10(1)(c), 10(1)(d), 10(3) and 10 (5). Article 15(5) as inserted by the Constitution (93rd Amendment) dated 21.1.2006 which will be applicable on the same date reads as follows:

"Nothing contained in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30". We shall consider the provisions of reservation for the time being in so far as they relate to unaided non-minority institutions.  W.P.(C) No.17873/2006 etc. - 269 - Article 15(5) permits by way of special provision reservation for socially and educationally backward classes or for Scheduled Castes and Scheduled Tribes. In so far as reservations of 10% for Scheduled Castes and Scheduled Tribes and 25% for other Socially and educationally backward classes are concerned, there may not be any exception to the same. The argument with regard to non-permissibility of reservation even in the context of Article 15(5) pertains to 3% of seats earmarked for physically challenging persons, 12% of seats earmarked for other sections of Society not covered under items (a), (b) and (c) of Sec. 10(1) on merit-cum-means basis, 15% earmarked for privilege seats under Section 10(3) and 2% earmarked for outstanding contribution in culture and sports under Section 10 (5). These reservations it is urged cannot be protected on the basis of the provisions contained in Article 15(5) of the Constitution.

77. There appears to be considerable merit in the contention raised by the learned counsel for the petitioners as noted above. By virtue of the provisions of Article 15(5) of the  W.P.(C) No.17873/2006 etc. - 270 - Constitution, notwithstanding anything contained in Article 15 itself or anything in Article 19(1)(g), the State by way of special provision, by law, can provide for reservation for socially and educationally backward classes of citizens and for Scheduled Castes and Scheduled Tribes. Whether the reservation of 3% provided for physically challenging persons and 12% for other sections of Society not covered by items (a), (b) and (c), as also reservation of 15% provided for privilege seats and 2% for outstanding contribution in sports and culture, would have the sanction of Article 15(5) of the Constitution. Physically handicapped persons may be deserving reservation otherwise, but such reservation cannot be protected by Article 15(5) of the Constitution as surely, such categories may not be such as may be identified as socially and educational backward nor it is Scheduled Caste or Scheduled Tribes and it is only these two categories for which by way of special provision by law reservation can be provided under Article 15(5). So would be true with regard to reservation provided for candidates who made outstanding contribution in culture and sports. No doubt,  W.P.(C) No.17873/2006 etc. - 271 - it is being urged by the State that 15% of privilege seats is for the benefit of management, as they have been given an option to make choice of the candidates, but it is emphatically urged by the counsel for the institutions that they would not like to have any such reservation as that would surely result into lowering the standards of education. Be that as it may, it is certain that the kind of reservation as mentioned above would not be protected nor would have any sanction under Article 15(5) of the Constitution. The question that thus arises is as to whether when the management may make option of all reservations as mentioned in various clauses of Section 10 and when it would surely go up to 82%, would that be legally permissible, in view of judicial precedents holding the field.

78. It is settled proposition of law by now that the promotion or advancement of weaker elements in the society needs to be balanced with consideration of national interest and the interest of the community of the society as a whole. Article 15(4) provides that State can by special provision to legislate for advancement of any socially and educationally backward classes  W.P.(C) No.17873/2006 etc. - 272 - of citizens or for the Scheduled Castes or Scheduled Tribes. There has been a debate eversince that the interest of the weaker elements requires to be balanced with the interest of the community of the society as a whole. In M.R.Balaji v. State of Mysore, [1962] INSC 276; AIR 1963 SC 649, the Government of Mysore had by an order reserved seats for backward classes in technical education and the extent of reservation was 68%. It was urged that such a high fixation of percentage would be inconsistent with the provisions of Article 15(4) of the Constitution. While dealing with the issue in the context of balancing the two interests as mentioned above, it was held as follows: "When Art.16(4) refers to the special

provision for the advancement of certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is a special provision; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interest of the society at large would be served by promoting the advancement of the weaker elements in the society that Art.15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely  W.P.(C) No.17873/2006 etc. - 273 - excludes the rest of the society, that clearly is outside the scope of Art.15(4). It would be extremely unreasonable to assume that in enacting Art.15(4) the Constitution intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. In this connection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessary that the demand for higher education which is thus increasing from year to year must be adequately met and properly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must not be lowered. The large demand for education may be met by starting larger number of educational institutions, vocational schools and polytechnics. But, it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserved for weaker elements in society. xxx xxx xxx  W.P.(C) No.17873/2006 etc. - 274 - Therefore in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seat in all technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Art.15(4) can be special provision which excludes the rest of the society altogether. xxx xxx xxx The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art.15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. In this particular case, it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by  W.P.(C) No.17873/2006 etc. - 275 - the Nagan Gowda Committee would not be in the larger interest of the State". In Indra Sahwney's case, the majority held that rule of 50% laid down in Balaji's case was a binding rule and not a mere rule of prudence. It was also held that Article 16(4) speaks of adequate representation and not proportionate representation, although proportion of population of backward classes to the total population would certainly be relevant and that Article 16 (4) which protects the interest of certain sections of society has to be balanced against Article 15(1) which protects the interest of every citizen of the entire society. It should be harmonious because they are resettlement of principles of equality under Article 14.

79. A special provision to provide for reservation must not go beyond 50% as in that situation, it would be against the interest of the nation. Surely, in that event, it will be a discrimination to non-reserved category and that is what is adversely commented upon as reverse discrimination. This has been the law all-through till date. It will be absolutely  W.P.(C) No.17873/2006 etc. - 276 - unnecessary to refer to other judicial precedents as that would burden this judgment which in the peculiar facts of the case is to be in any case voluminous. We are also not referring to any other case law on the point as it has remained undisputed that a total reservation, be it in the matter of education or employment, cannot go beyond 50%. The discordant view, however, in the present case is that, it is not a case of more than 50% compulsory reservation. The compulsory reservation, as submitted by Mr.Vaidyanathan, would not go beyond 50%. What Mr.Vaidyanathan contends may be correct if options given to the managements are not exercised. However, once the options are available and can well be exercised, what shall then happen. It is that situation which is permissible and may take place in a particular year, or year after year, which has to be taken into consideration in the context of Section 10. It is too well known that constitutionality of a provision can be tested even on hypothetical situation. In the present case, as mentioned above, the reservation to the extent of 82% is not a myth. It is a reality and as mentioned above may take place  W.P.(C) No.17873/2006 etc. - 277 - every year and for all times to come. Where shall go in that situation, the merit, for which alone it is urged on behalf of the State that Act of 2006 has been enacted. Considering thus, the contention raised by the learned counsel for the petitioners that it is a case of reservation far beyond permissible limits in a situation which is likely to happen, the court has no choice, but to hold that extent of reservation is wholly impermissible, illegal and unconstitutional. It is also against the law settled by the Supreme Court which holds the field till date.

80. It is also urged by the counsel appearing for the petitioners that if the college may consent to give reservations which are optional as detailed above, the students who may find selection by way of merit would be well within their rights to challenge such option exercised by the management by asserting that circumstances never existed for such a consent, the converse shall also be true. In case, thus, the institutions may not consent to optional reservations, candidates in the said  W.P.(C) No.17873/2006 etc. - 278 - reserve category may challenge the same by pleading that circumstances did exist that would justify their admission in such reservation. This would open floodgates of litigation for the management and the admission process shall never be complete. There appears to be considerable merit in the aforesaid contention of the learned counsel as well. Indeed a piquant situation has been created where the institutions may not be able to work out their affairs in either of two situations, when they may exercise an option of reservation or when they may not choose to do so.

81. Counsel for the petitioners would further contend that the non-obstante clause in Article 15(5) would be limited to Articles 15 and 19(1)(g). Articles 14, 21, 26 and 30 have been left untouched and would thus apply. It is further urged that special provisions contained in Article 15(5) must be reasonable and proportionate, and that the term 'special provision' must be subject to reasonableness. Article 15(5) cannot be used to nationalise admission grids, it is further the contention of the  W.P.(C) No.17873/2006 etc. - 279 - learned counsel appearing for the petitioners.

82. We have seriously considered the contention of the learned counsel and are of the view that the same too has merit. The provisions contained in Article 15(5) are notwithstanding anything contained in Article 15 itself and Article 19(1)(g). Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Article 19(1)(g) pertains to protection of the right of the citizens to practice any profession, or to carry on any occupation, trade or business. The provisions of Article 15(5) would apply irrespective of the provisions contained in Article 15 prohibiting discrimination on the grounds of religion, race, caste, sex or place of birth and also the fundamental right of citizens under Article 19(1)(g) to practice any profession. The running of an educational institution has already been held to be a profession within the meaning of Article 19(1)(g). Despite the provisions contained in Article 15 and 19(1)(g), the State would have competence to legislate by special provision for advancement of any socially and  W.P.(C) No.17873/2006 etc. - 280 - educationally backward classes or Scheduled Castes and Scheduled Tribes in the matter of education to educational institutions. The special laws that may thus be made, would not be subject to Articles 15 and 19(1)(g), but the same would be certainly subject to the provisions contained in Articles 14, 21, 26 and 30 of the Constitution. If the special laws in the matter of admission would thus be subject to Article 14, it shall have to be seen whether the provisions of Section 10 of the Act of 2006 are reasonable and proportionate. The special provisions would be subject to reasonableness. What is reasonable and proportionate has been the subject matter of debate and decision by the Supreme Court from 1956 to 2006. In State of Madras v. V.G. Row, (AIR 1956 SC 196), the Supreme Court held as follows:

"The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the  W.P.(C) No.17873/2006 etc. - 281 - restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable.". In Teri Oat Estates (P) Ltd., v. U.T. Chandigarh, (2004) 2 SCC 130, it was held thus:  W.P.(C) No.17873/2006 etc. - 282 - "By proportionality, it is meant that

the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". It was further held that,

"Ever since 1952, the principle of proportionality has been applied vigorously to legislative and administrative action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, this Court has occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. In cases where such legislation is made and the restrictions are reasonable; yet, if the statute concerned permitted administrative authorities  W.P.(C) No.17873/2006 etc. - 283 - to exercise power or discretion while imposing restrictions in individual situations, question frequently arises whether a wrong choice is made by the administrator for imposing the restriction or whether the administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restrictions etc. In such cases, the administrative action in our country has to be tested on the principle of proportionality, just as it is done in the case of main legislation. This, in fact, is being done by the courts. Administrative action in India affecting the fundamental freedom has always been tested on the anvil of the proportionality in the last 50 years even though it has not been expressly stated that the principle that is applied is the proportionality principle.". As recently as on 19th October, 2006 and during the course of arguments in this case, the Constitution Bench in N.Nagraj v. Union of India, (2006) 8 SCC 212 held that, "The point which is important to be

noted is that principles of federalism, secularism, reasonableness and socialism etc., are beyond the words of a particular statute". It was further held that,

"Therefore, axioms like secularism, democracy, reasonableness, social justice etc.,  W.P.(C) No.17873/2006 etc. - 284 - are overarching principles which provide a linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values.". The Supreme Court in N.Nagraj's case touched on variety of factors, some of which are applicable to the facts of the present case. Before we may cull out the principles laid down in Nagraj's case, it will be appropriate to find out even though in brevity the facts of the said case and the propositions of law that were mooted and commented upon.

83. A writ under Article 32 of the Constitution came to be filed before the Supreme Court seeking a writ in the nature of certiorari to quash the Constitution (85th Amendment) Act, 2001 inserting Article 16(4A) retrospectively from 17.6.1995 providing for reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. One of the arguments raised in challenging the said  W.P.(C) No.17873/2006 etc. - 285 - amendment was that the same would seek to alter the the fundamental right of equality which is a part of the basic structure of the Constitution. It was urged that equality in the context of Article 16(1) connotes 'accelerated promotion' which was not to include consequential seniority, and thereby attaching of consequential seniority to the accelerated promotion would violate the equality in Article 14 read with Article 16(1). It was also urged that the same would impair efficiency. The challenge was also to Constitution (77th Amendment) Act of 1995. It was urged that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. The consequences of the impugned 85th Amendment which provides for reservation in promotion with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre. .

84. While considering the contentions as mentioned above on the basis of Articles 16(1), 16(4) and 335 of the Constitution of India, in the context of challenge to the 85th  W.P.(C) No.17873/2006 etc. - 286 - amendment of the Constitution and in view of the provisions contained in Article 14, it was observed that, enabling provisions are permissive in nature. These are enacted to balance equality with positive discrimination. The constitutional law is the law of evolving concepts. Some of them are generic, others have to be identified and valued. The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-a-vis efficiency, which depends on the fact-situation only and not abstract principle of equality in Article 14 as spelt out in detail in Articles 15 and 16. Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the second part is a positive concept which is enough to validate equalizing measures depending upon the fact-situation. While dealing with the test to judge the validity of the impugned State Acts, it was observed as follows: "As stated above, the boundaries of

the width of the power, namely the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of  W.P.(C) No.17873/2006 etc. - 287 - representation and the overall administrative efficiency are not obliterated by the impugned amendments". The other pertinent observations read as follows:

"Therefore, in our view, equality as a concept is retained even under Article 16(4A) which is carved out of Article 16(4). xxx xxx xxx The test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply "the width test". In applying the "the width test" we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the concerned  W.P.(C) No.17873/2006 etc. - 288 - States has identified and valued the circumstances justifying it to make reservation. This question has to be decided case-wise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on facts of each case. The judgment in Indra Sawhney does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case, the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the concerned State will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution. xxx xxx xxx  W.P.(C) No.17873/2006 etc. - 289 - Reservation is not in issue. What is in issue is the extent of reservation. If the extent of reservation is excessive, then it makes an inroad into the principles of equality in Article 16(1). Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Governments to provide representation in public employment. Therefore, if in a given case, the court finds excessive reservation under the State enactment, then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements". While concluding the judgment, it was observed thus: "The impugned constitutional

amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of  W.P.(C) No.17873/2006 etc. - 290 - representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K.Sabharwal. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard,  W.P.(C) No.17873/2006 etc. - 291 - the concerned State will have to show in each case the existence of the compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.".

85. Mr.Rajeev Dhavan, learned counsel for the petitioners contends that Article 15(5) permits special provisions but the same have to be reasonable and proportionate. The judgment of the Supreme Court in Nagraj's case would apply irrespective of the fact that whereas reservation has been provided for Scheduled Castes/Scheduled Tribes and socially and educationally backward classes in the matter of education, whereas the challenge in Nagraj's case was to Article 16(4A) inserted by 85th amendment. The provisions for reservation, be it in admission to educational institutions or in service matters shall have to be reasonable and proportionate. Mr.Vaidyanathan, learned Senior Counsel representing the State has not endeavoured to make any distinction between Articles dealing with reservation in service or accelerated promotion in  W.P.(C) No.17873/2006 etc. - 292 - service or reservation in admission to educational institutions when tested on reasonableness and proportionality.

86. In Indra Sawhney v. Union of India, (Mandal Case), 1992 Supp (3) SCC 217, while dealing with the identification of other backward classes it was observed that there should be a permanent body, in the nature of Commission Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. It was further observed that,

"It is equally desirable that each State constitutes such a body which step would go a long way in redressing genuine grievances. Such a body can be created under clause (4) of Article 16 itself - or under Article 16(4) read with Article 340 - as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of the nature aforementioned, if any received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of OBCs. As suggested by Chandrachud,  W.P.(C) No.17873/2006 etc. - 293 - CJ., in Vasanth Kumar (1985 Supp SCC 714), there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be.". In Atyant Pichhare Barg Chhatra Sangh v. Jharkhand State Vaishya Federation, 2006 (7) SCALE 579, the challenge was in amalgamating two classes, namely, Backward Classes and Extremely Backward Classes and the reduction of reservation from 12% and 9% respectively to 14% only for the purpose of admission in professional educational institutions. The question that was raised pertained to reservation in professional educational institutions for extremely backward classes in the State of Jharkhand. The State of Jharkhand had provided 73% reservation for appointments in Government Services adopting the Bihar (Scheduled castes, Scheduled Tribes and Backward Classes) Reservation Act, with certain modifications vide notification dated 3.10.2001. While considering the question as mentioned above, the Supreme Court observed as follows: "It was argued by the learned

counsel appearing for the respondents that the Central Government is following the policy of  W.P.(C) No.17873/2006 etc. - 294 - clubbing the Extremely Backward Classes with the Backward Classes. In our opinion, it does not justify Jharkhand following the same policy. Jharkhand Government will look into the facts and circumstances that are peculiar to it by appointing an Expert Commission or a Body as has been provided for in the Mandal Commission's case which can inquire into the representations/complaints made over under-inclusion and over-inclusion and make binding recommendations. As rightly pointed out by the learned senior counsel appearing for the appellants, the Division Bench failed to notice that the Government did not provide any material on record which have justified amalgamation of the two classes of people nor were any documents, relevant materials or any reports as produced to show a change in circumstances as was alleged by the Government. Before taking the decision to amalgamate two classes, the relevant factors were not taken into account.".

87. From the judicial precedents mentioned above, it will be clear that the non-obstante clause in Article 15(5) would be limited to that Article and Article 19(1)(g) whereas Articles 14, 21, 26 and 30 have specifically been excluded. The rights of minorities have been specifically excluded. Article 15(5) is for the benefit of Scheduled Castes/Scheduled Tribes and socially and educationally backward classes only and no one else, and  W.P.(C) No.17873/2006 etc. - 295 - that the Article 15(5) is a special provision which must be reasonable and proportionate. The special provisions are always subject to reasonableness. In the context of the law laid down by the Honourable Supreme Court in the judicial precedents as mentioned above, it can well be said in the context of the Act under challenge that it provides for a grid of 100% to regulate all admissions by creating eight categories leaving the pure merit candidates with clear and open chance to an extent of 18% and not more. The allocation of seats under Section 10(1)

(a) and (b) relating to SC/ST and socially and educationally backward classes are fixed at 10% and 25% respectively, without taking into consideration any data or determining factors for determining the percentage of reservation. The creamy layer has not been excluded. There is indeed allocation of 15% of seats in NRI category and 15% of students can be admitted in the privilege seats as per Section 10 (2) and 10(3), but cumulatively these reservations/allocation would cut into merit quota. We have already referred to some reservations which are wholly impermissible under Article 15(5). The cumulative  W.P.(C) No.17873/2006 etc. - 296 - effect of the factors mentioned would make Section 10 illegal and unconstitutional; the same would be neither reasonable nor proportionate.

88. Before we may part with the challenge to Section 10, we may mention the defence sought to be projected by the State, even though in view of the law laid down as above, the same may not be of much meaning and consequence. It is urged by Mr.Vaidyanathan that in so far as non-minority institutions are concerned, the challenge to Sections 10(1)(a) and 10(1)(b) are unsustainable in view of the express power conferred by Article 15(5) of the Constitution which to that extent would prevail over the prior declaration of law made in Inamdar's case. There cannot be any exception to the contention raised by Mr.Vaidyanathan, but the challenge is to Section 10 as a whole. In fact, the case of the petitioners is that if other provisions of Section 10 may not sustain, the whole of Section 10 shall have to be declared as invalid. We will deal with that part hereinafter. Suffice it to say that challenge to Section 10 as a whole is primarily on the ground that it is neither  W.P.(C) No.17873/2006 etc. - 297 - reasonable nor proportionate, and on this contention raised by the learned counsel for the petitioners, there is hardly any defence. It is then urged by Mr.Vaidyanathan that provisions in Section 10(2) in respect of reservation for NRI seats is in line with the decision of the Supreme Court in Inamdar's case. That may be so, and may be the institutions would like to have this quota to an extent the students may be available in that category, but then again as mentioned above, the challenge is to Section 10 in its entirety. It is then urged on behalf of the State that Section 10(2) read with Section 2(q) is an option given to both minority and non-minority institutions for filling up 15% of seats under the category of privilege seats. It is purely optional and there is no compulsion. If the institutions do not desire to fill up these categories with their choice of candidates as prescribed, the said seats will be filled up from the general merit seats. This contention is countered by the learned counsel for the petitioners by stating that even though such a quota is optional, but if opted it will cut upon merit seats, which will be reduced to 18 out of the grid of 100. Mr.Vaidyanathan also  W.P.(C) No.17873/2006 etc. - 298 - contends that assumption that only 18% seats are to be filled from general merit seats relying on Section 10(4) is incorrect and that is a mandatory minimum. The mandatory reservation is only in respect of 10% for Scheduled Castes/Scheduled Tribes, 25% for other socially and economically weaker sections and 2% for students who have made outstanding contribution in the field of culture and sports. It is open to the institutions to fill up the entire balance of 63% of the seats from the general merit list of Common Entrance Test. The question as mentioned above is not, if the management may not opt for such a quota. The question is if they opt for such a quota, which they can and may in all probability do, then merit seats would be only 18% and not more. The options contained in Sections 10(1)(c) and 10(1)(d) have already been dealt by us. It is also the contention of the State that in so far as unaided minority professional colleges or institutions are concerned, they can fill the entirety of seats (i.e. 100% of seats) from out of the students belonging to the minority community to which the colleges/institutions belong. That is, however, not the question that has been posed by the  W.P.(C) No.17873/2006 etc. - 299 - petitioners. The question we repeat is what shall happen when options are exercised and to that question there is no plausible answer coming from the State. SEVERABILITY

89. The last limb of argument pertains to non-severability of valid and invalid provisions of the Act 19 of 2006. It is urged on behalf of the petitioners that the provisions of the Act are so intermixed and connected with each other that when invalid clauses may be struck down, the remaining provision shall not be severable and therefore, shall also have to be set aside. For the proposition that if the invalid parts of the statute are not severable, the whole of the Act is to be struck down, reliance is placed upon the decision of the Supreme Court in R.M.D.Chamarbaugwalla v. Union of India, [1957] INSC 32; AIR 1957 SC 628. The doctrine of severability is not in dispute, but it is urged on behalf of the State that even if the court may find some provisions to be offending the provisions of the Constitution and therefore not sustainable, the rest of the provisions would be severable and there is no need to strike  W.P.(C) No.17873/2006 etc. - 300 - down the entire Act. We accept this contention. The provisions of the Act can be divided into two main categories. Whereas, one category would be with regard to procedure for admission, fixation of fee structure, determining factors of minority and quota; the other an entirely separable part would be with regard to constitution of the Admission Supervisory Committee as per Section 4, and Fee Regulatory Committee as per Section 6 of the Act. The Admission Supervisory Committee would consist of members as mentioned above, which may adopt its own procedure for conduct of its business. The Committee can supervise and guide the process of admission of students to unaided professional colleges or institutions with a view to ensure that the entire process is fair, transparent, merit based and non-exploitative. It would have the power to hear complaints with regard to admission in contravention of the provisions of the Act, it would have the power to impose fine, or even recommend for withdrawal of recognition/affiliation. The Fee Regulatory Committee shall consist of members as mentioned above. The Committee shall adopt its own procedure  W.P.(C) No.17873/2006 etc. - 301 - for the conduct of its business. There cannot be any exception to the constitution of these Committees and the power given to them. Such Committees have indeed been envisaged and even ordered temporarily till such time law is enacted, even as per the decisions relied on by the learned counsel for the parties as mentioned above. These provisions are wholly unconnected with the other part of the provisions as referred to above. There is no occasion at all thus, to set aside the whole Act as urged by the counsel representing the petitioners. Sections 4 and 6 constituting two Committees are valid, constitutional and have the sanction of law as determined by the Supreme Court. These Committees, indeed, need to be constituted to supervise the admission procedure which has to satisfy the triple test of fair, transparent and non-exploitative procedure for admission as also fix the fee which cannot have the element of profiteering and in fact has to be determined considering various factors as mentioned above, keeping in view the future development of the institution. The Committees would ensure transparency in admission and fixation of fee. These provisions are wholesome  W.P.(C) No.17873/2006 etc. - 302 - and the need of the hour.

90. In so far as, however, Section 10 is concerned, the same has valid and invalid provisions and the valid provisions are such which cannot be separated from the invalid provisions, and therefore, the whole of Section 10 has to be set aside. The provisions of Section 10(1)(a) and 10(1)(b) are permissible and have the sanction of Article 15(5) of the Constitution. We may only mention here that vires of Article 15(5) are not under challenge in these petitions. There are certain petitions which we have separated in which Article 15(5) is also challenged. Subject to such challenge, the provisions of Section 10(1)(a) and 10(1)(b) are valid, but the same are so intermixed with other provisions that the same have to be set aside even though reluctantly. We have already referred to impermissible quotas which cannot be protected under Article 15(5) of the Constitution. The said impermissible quotas are 3% of seats meant for physically challenged persons, 12% of seats for other sections of Society not covered under items (a), (b) and (c) of Section 10(1), 2% of students who might have made  W.P.(C) No.17873/2006 etc. - 303 - outstanding contribution in the field of culture and sports. If impermissible categories of reservation are set set aside, how shall these seats be worked out. There may be provision for interchangeability in the case of non-availability of students, but not in the event of provisions providing reservation to specified categories becoming invalid and no admission being made from the said categories. Further, if merit seats are only 18 out of 100, to make it more than 50 which category shall have to be deleted would not be known. It will not be possible for the court to reduce the option of the managements under the NRI seats or privilege seats so as to enhance merit seats to 50% or more. The institutions have been given the option and as mentioned above, they can exercise it. The court cannot in any case order reduction of any such seats. Still further, there are provisions for surrender and rotation of seats. The court can also not order the institution to surrender the seats as that is their option. The increase of merit seats to 50% or more by surrender cannot be enforced by court. If some of the quotas may be impermissible, how shall rotation take place is again difficult to guess. That  W.P.(C) No.17873/2006 etc. - 304 - apart, the scheme of the Section is such that whereas freeship are envisaged particularly with regard to Section 10(1)(a) and 10 (1)(b), the provision for NRI and Privilege seats are envisaged in Sections 10(2) and 10(3). These provisions are related to the structure of fee, as mentioned above, the fees paid by the NRI and privilege seats would appear to balance the budget of the institutions. If NRI or privilege seats are reduced or set at naught, it will not be possible for the institutions to manage their budget, they shall not at all be able to run the affairs of the institution and might have to be closed down. At this stage, it is necessary to refer to second part of Section 10(8) which enjoins the minority community institutions to provide freeship to 50% of seats as mentioned in the first part of Section 10(8). The institutions have thus to provide free or partly free seats not only to the categories mentioned in Section 10(1), but also to 50% of the 50% students of its community. It would take freeship or partly freeship to almost 75% and in that situation, if the profit seats like NRI and/or Privilege seats are reduced, so as to raise the merit seats, it will be a complete shut down or closure of the  W.P.(C) No.17873/2006 etc. - 305 - institution. The provisions of Section 10 are so inextricably interwoven that they are not separable. It is not a case of ironing out the creases. If perhaps, the court could protect the provisions contained in sub-sections 1(a) and (b) of Section 10, it would have done so, but that would amount to rewriting or enacting the law by the Court, which is not permissible. The reservation for SC/ST and other backward classes is permissible. As mentioned above, there cannot be any exception to the same, subject to the validity of Article 15(5). The Government would be well within its rights to provide reservation for classes as mentioned above and may do even now but the same has to be done after taking into consideration the factors as enumerated above. The Government may even now take steps to redraft the Section, provide for such reservation even by an Ordinance or such other measures as may be permissible till such time Section 10 is suitably substituted keeping in view the parameters of providing quotas as determined by the Supreme Court from time to time as also keeping in view the upper limit of reservation.

91. Before we may draw our conclusions on the basis of the discussion mentioned above, we would  W.P.(C) No.17873/2006 etc. - 306 - like to mention that the Government appeared to be in an extreme hurry in bringing about the Act of 2006. This observation, we are making, on the basis of counter affidavit filed by the State itself, wherein it is stated that the present Government of the State assumed office on 18.5.2006. One of the prime initiatives of the Government was to fulfil the promise given to the people in regard to bringing in legislation to regulate unaided colleges. Specific promises were made in respect of regulating unaided educational institutions. Immediately after assuming office the Government took steps to bring in proposed legislation. The Bill was introduced on 22nd June, 2006 in the very first session of the Legislative Assembly. It was examined by the Subject Committee and unanimously passed by the Assembly in the early hours of 30th June, 2006. The Governor gave assent to the Bill on 2nd July, 2006. It appears to this Court that the Government hurried in passing the Act without much deliberations simply with a view to fulfil its electoral promises. We are so observing as almost the entire Preamble of the Act makes statements of law supposedly culled out from three  W.P.(C) No.17873/2006 etc. - 307 - leading judgments referred to above. It appears that in its anxiety to fulfil the promise to the electorate only stray sentences were picked up from the three judicial precedents without taking into consideration the reference and context in which they were made. It may be recalled that a Constitution Bench of seven Judges was constituted in Inamdar's case, primarily with a view to clarify the law laid down in T.M.A.Pai's case and Islamic Academy's case. The educational institutions and the Government were interpreting these judgments in their favour. They were so interpreting these judgments in their favour as some observations were made in favour of both. It is interesting to note that even at this stage, when the Constitution Bench has rendered the judgment in Inamdar's case, both parties are relying upon the same judgment. It is thus clear that there are some sentences which may go in favour of the petitioners and others in favour of the State. The State appears to have picked up only such sentences or observations which go in their favour, be it T.M.A.Pai's case, Islamic Academy's case or Inamdar's case. However, while doing so, the State ought to  W.P.(C) No.17873/2006 etc. - 308 - have seen the reference and context in which such observations were made. It is for that reason that at the very outset the Constitution Bench in Inamdar's case mentioned that "it is dangerous to take one or two observations out of a long judgment and to treat the same as if they give the ratio decidendi of the said case". The statements of law made in the Preamble around which the Act of 2006 has been hedged appear to be by making a vital mistake of taking one or two observations out of the long judgment and treating the same to be the ratio decidendi of the case.

92. We may also mention that Self Financing Educational Institutions which are imparting quality education or which may by regulations impart such education need to be encouraged. The State for variety of reasons and in particular, paucity of resources and funds, is unable to cater for the need of the Society. It is unable to provide quality education to all commensurate to the need of the Society. It is unable to provide quantitative and qualitative education to all. The students clamouring for education are far more commensurate to the  W.P.(C) No.17873/2006 etc. - 309 - educational institutions established by the Government. Unnecessary and unproductive regulations which may virtually amount to take over of such reputed institutions would be counter productive. The day to day monitoring of the institutions and choking them financially may result in their closure. Such regulatory measures would do far more harm than the good they might be intended to do. Would closure of such institutions which are sharing the responsibility of the Government in imparting education in the Society not defeat the very requirement of education in the country is the question which has to be seriously pondered over. It is equally true that such strata of the society who may be socially or economically weak also deserves quality education. A balance has thus to be struck. Far from striving to strike a balance, whereas it is the endeavour of the Government to virtually take over these institutions, the institutions may also be finding all ways and means to breathe free, thus resulting into continuous litigation which has brought no tangible results. A time has come when this complex problem needs to be resolved amicably. The  W.P.(C) No.17873/2006 etc. - 310 - Government and Managements of the private educational institutions need to work in tandem both aiming to take education to its pinnacle. Whereas, it should be the endeavour of the Government to encourage Self Financing Institutions and yet control imparting of quality education and non-exploitation of students, the institutions must also endeavour to accommodate as many students as may be possible, who may not be as fortunate as their counter-parts coming from affluent strata of the Society. As long as this is not sincerely felt by the Government and the institutions, it appears to us that there will be no end of litigation in this country. The court can only hope that everyone would understand its responsibility and work for the common goal to uplift the standard of education and to ensure quality education to all, rich and poor.

93. At the end, we place on record our appreciation of able assistance given to the Court by Mr.Andyarujina, Mr.Rajeev Dhavan, Mr.Vivek Tanka, Senior Advocates and other counsel appearing for the petitioners as also Mr.Vaidyanathan, Senior Advocate and Sri.C.P.Sudhakara Prasad, Advocate  W.P.(C) No.17873/2006 etc. - 311 - General, Kerala.

94. In view of the discussions made above, we hold the provisions contained in Section 3, 7, 8(b) and (c), and 10 of the Act of 2006 and Rules 10 and 11 of the Rules to be invalid and ultra vires the Constitution and thus set aside the same. The provisions mentioned above are opposed to Article 14 and would also violate the fundamental rights of the petitioner-institutions under Articles 19(1)(g), 26(a) and 30 of the Constitution of India. The Writ Petitions are allowed to the above extent. In view of the peculiar facts and circumstances of the case, the costs are made easy. Sd/- V.K. BALI, CHIEF JUSTICE. Sd/- P.R. RAMAN,

JUDGE.