Additional Submissions of Soli J. Sorabjee, Attorney-General for India as Amicus Curiae
A. An alternative submission is that in any event Article 29(2) does not prohibit preferential treatment given by the minority educational institution to students belonging to its community. If the preference given is rational and not disproportionate, it would not fall within the prohibition of Article 29(2). What is rational, what is disproportionate is a relative concept and would depend on the factual situation prevailing in a minority educational institution.
B. The judgment of this Hon'ble Court in St. Stephen's College1 is open to question only to the extent that it permits reservation by minority educational institution up to the extent of 50% of the students.
C. Any interpretation that may be placed by this Hon'ble Court on the minority rights provisions should advance their underlying purpose, namely, to instil confidence and sense of security in the minorities.
INTERPRETATION OF ARTICLE 30 OF THE CONSTITUTION OF INDIA
I. Article 30 of the Constitution groups religious and linguistic minorities together and extends equal or identical rights to both classes of minorities. The purpose of Article 30 is to instil confidence in these two classes of minorities, by way of an assurance that they will have the same rights as non-minorities, notwithstanding the fact that under the system of government adopted by the Constitution, the majority would, if it chooses, have the power to pass laws and take executive action which may suppress the aspirations of the minorities. This guarantee of equality has been extended in regard to the establishing and administering of educational institutions of the choice of these minorities. This will be evident from the following propositions:
(a) The right under Article 30 is given to a group as a collective, namely, a religious or a linguistic group and not to individuals (the dictionary meanings of the word "minority" would substantiate this statement)2 It is obvious that no attempt was made by the Constitution to extend different rights to a minority based on religion as against a minority based on language. Article 30 places a linguistic as well as a religious minority on the same or equal footing and whatever interpretation is extended to one group will equally apply to the other. This is self-evident as two different provisions would have been made in case different rights were to flow to the two different classes of minorities. The concept of minority is numerical (that is less than 50%)3 There could be minorities who are numerically smaller than other groups, but because of their dominant status or power in society, will not be treated as a minority. But this cannot apply in India as there is no language group which can be treated as more dominant or powerful than the other groups and similarly there are minorities based on religion, like the Parsees who are socially, educationally and economically better placed. Surely, the provision was not intended to protect a group with larger numbers against a group having smaller numbers.
(b) In the case of linguistic minorities, every language group in the country is a minority as there is no non-minority language group in the country. In 1951, the Hindi-speaking population was less than 50%, namely, 42.01%. Similarly, if the State is taken as a unit, every language group will be a minority in some State or the other4 This is also the case in regard to religious minorities (for example, Christians are minorities in most of the States in India though a non-minority in Nagaland, Mizoram, and Meghalaya). It is submitted that in regard to a Central legislation or a State legislation, the unit has to be taken as a State for the purpose of a linguistic minority as otherwise in regard to a Central law applicable to educational institutions all over India, say, in the State of Andhra Pradesh, the Telugu-speaking people will be entitled to minority rights even though they form the major proportion of the State's population.
(c) Since Article 30 covers both linguistic and religious minorities, without differentiating between one and the other, it follows that Article 30 was not intended to neutralize centuries of historical discrimination and to undertake affirmative action in favour of weaker sections and therefore the conclusion that the true intent and purpose of Article 30 is to instil confidence in these minorities and to extend to them, in the field of education, an assurance that they will have the right to establish and administer educational institutions of their choice. This distinction is quite apparent from Articles 15(4) and 16(4) which have been held to be in the nature of affirmative action as a result of which the benefits extended will not be similar to those extended to a group outside the preferred categories, but will be far greater, to accelerate their advancement by conferring significantly higher rights5
(d) It would be incorrect, therefore to interpret Article 30 of the Constitution, as has been done by earlier judgments, as extending to minorities higher rights than what were possessed by non-minorities. Article 30 was intended merely to prevent, in future, oppression and suppression by the majority the rights of the minority to propagate their religion or language or to benefit the members of their community by establishing educational institutions. These judgments, to that extent, would require reconsideration6
II. A similar result will follow by interpreting Article 30, not in isolation,7 but in the context in which it occurs in the Constitution, namely, the requirements of Articles 14, 15 and 16 which declare the rule of law in an egalitarian society so that equality would prevail. Article 30, therefore, enshrines the rights of minorities in the area of education so that this right may not be diluted or suppressed by the majority.
III. As already pointed out, the right under Article 30 is given to a minority, based on religion or language, which means a group or a collective and not to an individual8 To extend the right to an individual belonging to that religion or that language is to render the protection meaningless as every Indian would then be entitled to set up an educational institution for propagating his language in any number of States, which do not have his language as the language of the majority. Similarly, every Indian would be entitled to set up an educational institution for propagating his religion in most States in India except that a Hindu can set up such an institution only in the 5 States of Jammu & Kashmir, Punjab, Meghalaya, Nagaland and Mizoram. The provisions of the Constitution clearly distinguish between rights which are extended to individuals, by using the words "every citizen" (Article 19) or "every person" (Article 21) and those extended as a collective, by using the words "all minorities" (Article 30) or "every religious denomination or any section thereof" (Article 26). The judgments of this Hon'ble Court, which extend the minority right to an individual for setting up an educational institution, requires reconsideration.
IV. It would be clear from the reading of Article 30 that the educational institutions will have to be both established by that minority as well as administered by that minority, the two being conjunctive and not disjunctive9 Similarly, the requirement of Article 30 will be that not only will the minority group, as a group, through a trust or through a corporation or through a society have to establish the minority institution, but additionally, the primary objects of the trust, the society or the corporation should be to propagate that religion or language for the benefit of the members10 of that religious group, as well as for the benefit of anyone else who would take advantage of the teaching. If individuals are excluded from Article 30, for a law to require that the minorities should establish an educational institution through a trust or through a corporation or through a society would be a legitimate regulation in the interests of the minority institution itself. This would ensure regularity of its functioning in accordance with the objects for which it is established, the maintenance and submission of accounts and audit etc. being provisions intended to prevent maladministration.
V. In this background, a purposive or object-oriented interpretation would have to be given to Article 30 for the purpose of eliciting its true content and meaning11
VI. Applying the principle of purposive or object-oriented interpretation, the right is extended to religious and linguistic minorities and not to minorities based on race, ethnicity, indigenous native population or residence etc. so that Article 30 has to be interpreted as a right given to a linguistic or a religious group:
(a) to establish and administer educational institutions,
(b) for the purpose of propagating that religion or that language, and/or
(c) for the benefit of the members of the religious group or the linguistic group or others who desire to participate in learning the tenets of that religion or that language.
To interpret Article 30 otherwise would be to confer a meaningless benefit on the minority, if based on religion or language, if no nexus need exist between the functioning of the educational institution and the propagation of language or religion of those groups. Institutions for imparting professional education would be outside the scope of Article 30.
VII. The purpose being to benefit minorities, it has to be examined whether the institution that has been established is really for the purpose of the minority or is a cloak or a veil or a "masked phantom" for private benefit. This is more so in the case of professional colleges where capitation fee going into lakhs of rupees (14 lakhs in 1992) can be collected12 Any number of reports as well judgments of courts have disclosed the abuse to which this right can be put to by exploiting students and the parents by collecting large amounts for admission of students and also for various purposes like sports, uniforms, lunch, library and so on. It is essential that this right to establish educational institutions should not be utilized for the purpose of private profit.
VIII. With the mushroom growth of professional colleges awarding degrees in Medicine, Engineering, Dentistry and so on, linguistic or religious groups have been setting up such institutions in neighbouring States for taking advantage of Article 30 of the Constitution by masquerading as minority institutions. In such cases, to test whether they are "masked phantoms" and to lift the "minority" veil, the enquiry has to be -
1. Has there been a demand from the members of that religious or linguistic minority in that State or region for the setting up of a college with that particular professional course?
2. Have any special concessions been extended by the founders to the members of the minority community?
3. What has been their number or percentage in the said institution and what has been the number and percentage of the said minority in the non-minority institution in that district or the State?
In other words if about the same numbers are found in the minority or non-minority colleges or the minority students are found to have come from outside the State, it follows that the institution was not set up for the benefit of that minority in the State.
IX. In addition to the inbuilt restrictions arising from the purposive interpretation of Article 30, the further limitation that flows is that the right is limited to establishing and administering "educational institutions", which would mean institutions set up, other than as "a business enterprise" or "a commercial venture" as this would amount to exploiting education and would not by itself be establishing the "educational institution" contemplated by Article 30 of the Constitution. An institution set up for exploiting minority rights through collection of capitation fees will not be within the scope of Article 30.
X. In addition to the regulation which flows from the object-oriented right extended to a religious group or a linguistic group, restrictions can be imposed because of the limitations arising from the words "administer". This does not permit maladministration, or administration which does not maintain excellence of education. Such restrictions can also be imposed in the interests of the institution itself, its students and its teachers13
XI. The State's powers of regulation in the interests of the institution itself, its students and the teachers or to maintain excellence of education as well as to prevent maladministration will extend to -
(1) prescribing qualifications for students as well as teachers,
(2) standards of education by prescribing curricula and syllabi,
(3) in regard to the governing board, in addition to members of the minority's choice, representatives of the teachers and others,
(4) approval of the Government in various matters like the constitution of the governing board, the appointment of the teachers and the removal of the teachers,
(5) the takeover of the management of the institution, for a temporary period, to prevent continued maladministration, and
(6) governmental and municipal regulations as well as labour laws and other taxation laws which are applicable to all.
These issues will have to be decided in the cases relegated to smaller Benches, when the question actually arises.
XII. In regard to minority institutions, the right under Article 30(1) is not a secular right for the following reasons:
(a) Obviously, the right of a minority institution based on language, to establish an educational institution, is not a secular right as it relates to language and has no relation to religion.
(b) The right of the minority institution based on religion, being no different from the right of the minority based on language, no higher or different right can be claimed by the minority based on religion.
(c) The judgments of the Supreme Court in regard to Article 25 and Article 26 establish that management of a temple, removal of a Mahant etc. are secular aspects as they are not essential parts of religion, and applying the same analogy the right is a purely secular one14
Strangely, the earlier judgments of the Supreme Court have concentrated on minorities based on religion, and the significance of equal rights being extended to both minorities based on language and those based on religion has not received sufficient attention at the hands of this Hon'ble Court. As a result, educational institutions not related to propagating religion have been described as institutions devoted "to general secular education" as if the educational institutions for propagating religion are non-secular and religious in character. It would therefore follow that the judgments referring to "general secular education" as part of the rights of a minority are not correct. (Kerala Education3, St. Xavier's13 and St. Stephen's1.)
XIII. Based on the judgments relating to Articles 25 and 26 of the Constitution logically, the extent of regulation and restriction, in the case of educational institutions established by minorities have to be far greater than religious institutions governed by Articles 25 and 26, as educational institutions are purely of a secular character.
XIV. A minority institution established by foreigners or which is being administered by non-citizens will not have the protection of Article 30. This will follow from a reading of Article 30(2) of the Constitution which entitles minority institutions to be granted aid in the same manner as non-minority institutions so that no discrimination takes place. If Article 30(1) were to apply to foreigners, any number of foreign groups would set up institutions to impart religious education or for teaching their foreign languages on funds which would be demanded and obtained, as of right, from the Government of India merely because educational institutions run by Indians are being granted aid by the State15
INTERPRETATION OF ARTICLE 29(2) OF THE CONSTITUION
I. Article 29(2) of the Constitution is not subject to Article 30(1) and as such applies equally to both minority as well as non-minority institutions. The Constitution being the organic document, the golden rule of interpreting its provisions in accordance with the words used by the founding fathers has to be applied. Doing so, it is apparent that Article 29(2) nowhere states that it is subject to the provisions of Article 30(1). Equally, Article 30(1) does not commence with a non obstante clause stating "notwithstanding anything in Article 29(2) of the Constitution". The First Amendment, introduced when Parliament was composed of the very Members of the Constituent Assembly, amended Article 15(4) by declaring "nothing ... in clause (2) of Article 29 shall prevent ..." thereby rendering Article 29(2) inapplicable to reservations being made for Scheduled Castes and Scheduled Tribes and Other Backward Classes. Clause (2) of Article 29 cannot, therefore, be rendered inapplicable, in the absence of clear words, to Article 30(1) of the Constitution.
The philosophy underlying Article 29(2) is that funding a private educational institution by grant of aid gives rise to a State interest as a result of which the State is entitled to ensure that such institutions do not discriminate between person and person on grounds which are not relevant to throwing open education to all on the basis of merit, or relevant considerations. What the State is prohibited from doing by Articles 14 and 15 of the Constitution could equally be rendered applicable to State-funded institutions as well as that is what Article 29(2) seeks to achieve.
II. Article 27 again sets out the philosophy of the Constitution, as secularism is enshrined in the Constitution, by prohibiting State taxes from being used for the promotion or maintenance of any particular religion. The educational institutions established by a minority, based on religion, will undoubtedly promote the religious teachings and precepts of that religion. The grant of aid by the State, under Article 29(2), to an educational institution maintained by a minority based on religion, will be from the revenues raised by the State by levy of taxes from persons belonging to other religions, including those belonging to the majority religion. The philosophy underlying Article 27 stands breached, in such a case, as any other interpretation would be indirectly running contrary to what is sought to be prohibited by Article 27 of the Constitution. In any event, in a secular State using taxes paid by the members of a religion, to support a minority educational institution for propagating the minority's religion would be abhorrent to the concept of secularism. The minorities therefore have the choice of not seeking aid. If however they seek and obtain aid under Article 30(2) or otherwise they will be disentitled from discriminating on the grounds mentioned in Article 29(2). It should be noted that this limitation applies only to non-discrimination in regard to admissions on the grounds mentioned and does not affect any other right the minorities possess under Article 30.
APPLICABILITY OF ARTICLE 19(1)(g) OF THE CONSTITUTION TO NON-MINORITY INSTITUTIONS
I. The fundamental right granted by Article 19(1)(g) does not apply to non-minority educational institutions as it is not a profession or a trade, and except for the purposes of the Industrial Disputes Act, is not a business. There is no recognized occupation known as "establishing of educational institutions". It does not come within the meaning of the word "occupation" as the words "occupation, trade or business" have to be read ejusdem generis. The dictionaries define occupation as a business16 The judgment in Bangalore Water Supply & Sewerage Board case17 has necessarily to be restricted to the definitions in the Industrial Disputes Act as any number of judgments have held that education is not a business. On the other hand, education has been held to be a charitable purpose18 What is to be examined is not the right of a teacher to impart knowledge and education to a student but the right of an entrepreneur or a charitably disposed person to establish and maintain an educational institution. There is no such occupation known as the occupation of establishing educational institutions19
II. This does not mean that no right can be claimed by the non-minorities or an individual to establish educational institutions. The principles of English law that "Englishmen are free simply to do whatever the law does not prohibit20" will apply in India as it is part of the rule of law. In such a case the founder is entitled to also invoke the principle of non-arbitrariness enshrined in Article 14 of the Constitution to prevent the State from interfering with this right. The difference then between this common law right and Article 19(1)(g) will be that in both cases any regulation or restriction has to be reasonable, except that in the case of Article 19(1)(g) the restriction can be imposed only by law, while for the purpose of Article 14 the restriction can be through executive order traceable to Article 73 or 162 of the Constitution. It should also be mentioned that if on the basis of Bangalore Water Supply & Sewerage Board case17 establishing educational institutions is held to be an industry for all purposes, the laws made by the States for regulating non-minority educational institutions can be upheld on the basis that the provisions impose reasonable restrictions in the interests of the general public21
SCOPE OF ENTRY 25 OF LIST III OF THE CONSTITUTION
The State has undoubted power under Entry 25 of List III to regulate establishing educational institutions by minorities as well as non-minorities, except to the extent that its legislative competence has been taken away by Article 245 and Article 246 of the Constitution or by fundamental rights in Part III of the Constitution. Entry 25 empowers both the State Legislatures as well as Parliament to legislate on education, including technical education, medical education and universities as well as vocational and technical training of labour. The powers given to Parliament under Entries 64, 65, 66 and 67 of List I are withheld from the State Legislatures. We are here concerned with the extent to which Parliament or State Legislatures can regulate, through law, minority as well as non-minority educational institutions.
As has already been pointed out that the right under Article 30 is not absolute but that there are inherent limitations contained therein. Article 30 permits educational institutions to be set up only for propagating the religion or the language for the benefit of the minority. The further limitation is that it can establish only "educational institutions" and not businesses or in other words not institutions which commercialise education. The last inbuilt limitation is that the right is only to administer such institutions and not to maladminister. Additionally, all general laws will remain applicable. Each one of these aspects can, in the case of a minority institution, be regulated through law made by the appropriate legislatures.
In the case of non-minorities, obviously all of these restrictions can be imposed through regulatory laws and if Article 19(1)(g) applies, by restrictions made in public interest. If Article 19(1)(g) does not apply, such regulation can be imposed by laws or executive instructions which are non-arbitrary and reasonable in character.
As a result, the State is not only empowered by Articles 245 and 246 of the Constitution to legislate on the topic but it would also be its duty to so legislate so as to ensure that such institutions are established and administered in the interests of the institution itself, its students and the teachers.
CAPITATION FEE AND THE EXTENT OF REGULATION
I. The State has the power to regulate professional educational institutions, including colleges and universities, which impart education in Medicine, Engineering, Dentistry, Teaching and so on to prevent capitation fee from being collected in consideration of the grant of admission to students to such institutions.
A vast amount of material exists to establish that capitation fee is collected by aided and unaided as well as minority and non-minority institutions in professional colleges teaching Medicine, Engineering, Dentistry and so on22 This is not a vice which was recognised for the first time after the judgment in Unni Krishnan case22 for which the remedy was provided but various States from early 1980s onwards recognized the existence of this vice and provided the remedy therefor by prohibiting the collection of capitation and the statutory fixation of fees to be paid by the students. See23:
(1) the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983,
(2) the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984,
(3) the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987, and
(4) the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992.
The validity of these Acts have not been challenged before the eleven-Judge Bench. These Acts refer, in the preamble, to the large-scale commercialization of education, to the National Policy on Education, 1986 for curbing such commercialization. Capitation fee is defined as "any amount by whatever name called, whether in cash or in kind, paid or collected, directly or indirectly, in excess of the prescribed fee or as the case may be beyond the rates of fees fixed pursuant to the statute". The Act provides for fixation of the fee to be collected from students. Anything collected in excess of the fees so fixed is made punishable with imprisonment for various periods under the respective Acts. It is submitted that in view of the fact that these Acts have made it a criminal offence and provided for imprisonment, any amount collected in excess of the fees so fixed would necessarily have to be by way of black money and having been taken in cash which itself is an offence under the revenue laws, can never find its way into the accounts of the institution. It would necessarily have to be canalized into the pockets of the entrepreneurs or founders who have established the institution. It appears to be admitted on all sides that in such a case prohibition and regulation is essential to prevent this vice. No argument to the contrary has been put forward nor do the written submissions state anything to the contrary.
II. The second vice of the collection of the capitation fee is that the affluent ones alone will be able to have access to professional education, which is contrary to the socialist foundation of the Constitution. Thirdly, merit would be sacrificed for the purpose of the founders amassing huge wealth from less meritorious ones who are able to afford the high capitation fees which in 1992 was in the region of Rs 14 lakhs, as stated in the Parliamentary Debates24
III. Article 38(2) is the provision which would justify State regulation of professional colleges which indulge in this vice of capitation fee as it declares:
"38. (2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations."
IV. A three-pronged attack has been evolved by the State machinery for preventing this vice:
(1) to prohibit capitation fee through law and make it a criminal offence,
(2) to provide for fixation of the fees to be collected, the payment of any amount in excess of this being an offence, and
(3) to prevent the prohibition from being defeated, a common admission test conducted by the State or its agency like the University Grants Commission or the Central Board of Secondary Education to ensure that the institution does not directly negotiate with the students or the parents for collection of capitation fee. By manipulating the domestic or internal admission test the institution can ensure that the students who pay capitation fee alone are selected.
The key to the success of the scheme is to ensure that a reasonable level of fees is paid by students to the professional college to be able to meet its entire revenue expenditure and also to be able to add to its reserves for expansion and for replacement of capital assets.
V. Section 12-A of the University Grants Commission Act, 195625, which is not under challenge, provides for different scales of fees being fixed in relation to different universities or different classes of colleges or different areas. It prohibits the levy or charge of any fee in excess of the scale of fees specified by the regulations. Violation of the prohibition could result in withdrawal of the affiliation of the college. Provisions of the section and the regulations made were both to have effect notwithstanding anything inconsistent in any other law for the time being in force.
The Regulations made by the University Grants Commission in October 1997 make elaborate provision for fixation of fees for which purpose a Standing Committee consisting of a member of the University Grants Commission, a Vice-Chancellor, three experts, one each in Economics, Cost Accountancy and Institutional Finance as well as an expert in the "subject area" along with various other experts would fix the fees. In regard to institutions affiliated to State universities, a State-level committee would be constituted, again consisting of experts in Finance, Cost Accountancy and Economics, as well as others. Each one of the institutions was to submit data on the basis of which the fees are to be determined. In addition to tuition fee, a development fee for future development was also to be charged. In addition salary and allowances, expenditure on administrative services, cost of maintenance of laboratories including consumables, contingent expenditure including audit fee, cost of acquisition of books and journals for libraries and maintenance of buildings and other assets including rents and tariffs were all to be provided for.
VI. It is obvious that entrepreneurs who desire to establish professional institutions should be encouraged by providing for a scale of fees which will fully satisfy the needs for expansion of the institution. The University Grants Commission Regulations provide for the development fee being fixed of which no management shall appropriate more than 50% of the proceeds of the development fee levied, or the capital cost, whichever is lower, for the recovery of the actual capital cost. The remaining amount of the development fee shall be utilized for upgradation and replacement in the first 10 years and thereafter the entire proceeds may be utilized for upgradation and replacement purposes26
It is submitted that this three-pronged machinery evolved is one of policy adopted by the States as the only method by which this evil of collecting mind-boggling amounts in addition to the fee fixed, even at the cost of prosecution and disaffiliation, can be prevented. If the complaint is that sufficient, incentive is lacking for new institutions to be established, the answer is not to throw open the doors to the professional colleges to collect fees through illegitimate means but to ensure that the level of fee fixed fully satisfies the need for an incentive to establish new institutions.
Unni Krishnan case22 prohibited the collection of capitation fee and provided for a common entrance test for ensuring that the prohibition was not defeated by the institutions by directly negotiating with the parents for admission of the students. Unni Krishnan judgment22 was delivered on 2-2-1993. The statistics from Tamil Nadu would disclose that as many as 170 new engineering colleges have come up subsequent to 2-2-1993 in the State of Tamil Nadu alone, the break up of the new institutions yearwise is as follows:
||No. of colleges
This would prove beyond doubt that the three-pronged machinery evolved for preventing the collection of capitation fee, including the common entrance test is not an impediment or damper for the setting up of new professional colleges. It may be mentioned that of these 170, 109 are non-minority institutions and 37 are minority institutions.
VII. The scheme of a single-window admission procedure is the most efficient and effective manner of preventing the collection of capitation fee, as well as ensuring merit-based admission, while maintaining the reservations provided for by the Constitution27,
(a) By having a common entrance test with objective questions, every candidate gets an opportunity to be selected on the basis of merit as decided in the test,
(b) That merit should be the basis for admission to professional colleges is part of the Universal Declaration of Human Rights (Article 26).
"26. (1) Every one has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."
This Court has held that international covenants will be implemented by the Court unless contrary to its laws28 Not only is Article 26 of the Declaration not contrary to the laws but it is essential for ensuring equality as well as neutralizing the advantages and disadvantages based on the affluence or otherwise of candidates. This reaffirms Article 38(2) of the Constitution.
(c) The students are relieved of the burden of applying to the large number of professional colleges, 25 or 30 in number, in the case of medical colleges alone, and 316 in the case of Master of Business Administration/Master of Computer Applications in the State of Tamil Nadu alone.
(d) The candidate would not have to pay entrance fees of heavy sums for obtaining application forms (which is a means of making money by the institutions) as a result of which one would not normally be able to apply to all the institutions but only to a few among them, while through the centralized system a single application, at a reasonable fee, would entitle the applicant to be considered for all 220 engineering colleges in Tamil Nadu or the 17 medical colleges or the 316 Master of Business Administration and Master of Computer Science Colleges.
(e) The candidate will not have to rush from one institution to the other for his entrance test with every possibility of his missing out on a few.
(f) The candidate will be able to compete with all other applicants in the State for the best among them getting the right to be allotted to the best institution of his choice, while many candidates who apply to a few out of the large number of institutions may not get a seat in any one of them.
(g) With different qualifying examinations conducted by different Boards for the students in the State of Tamil Nadu (there are as many as 5 different qualifying examinations for MBA/MCA) the common entrance test will equalise all of them.
(h) The advantage of a common entrance test is that the principle of reservations would be guaranteed by the State through its process of selection on a whole-State basis so that every member of the Scheduled Caste, Scheduled Tribe as well as Backward Class will be assured of his rightful quota of seats out of the total seats available in that discipline in that State.
(i) There is a constitutional duty cast on the State to ensure that selections are made on merit, not merely because of the Universal Declaration of Human Rights but also by reason of Article 14 of the Constitution which requires the State to ensure that all persons are equal in the eye of law, this duty of the State arising out of the grant of recognition or the grant of affiliation or the grant of aid by the State or its agencies.
The further advantage of the single window or common entrance test is that the reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes would be ensured as required by the Constitution and the judgments of this Hon'ble Court by allotting from the common merit list students who have obtained marks above the cut-off line, to various colleges to ensure that each one of these colleges satisfies the requirement of reservations mandated by the Constitution.
VIII. The only manner in which Article 38(2) of the Constitution can be satisfied is by
(a) prohibiting the collection of capitation fee being the fee fixed for different professional institutions,
(b) by fixing fees which are generous in character to provide an incentive for new institutions being established, by taking note of the entire revenue expenditure plus the amount needed for development,
(c) prohibiting through penal provisions the collection of monies by whatever means and for whatever purposes in excess of the fee so fixed, and
(d) by providing for a common entrance test conducted by the State Government in case of State-recognized or State University-affiliated institutions or by the University Grants Commission or Central Board of Secondary Education where an all-India test is to be held for institutions under Central control.
IX. The devices commonly adopted by colleges to facilitate collection of capitation fee are:
(i) application forms made available only to those who agree to pay capitation fees,
(ii) the admission test not being transparent with any number of devious methods being adopted to ensure that only those who pay the capitation fee come out successful in the admission test, and
(iii) interview marks being exaggerated for the favoured few.
The State's right to prohibit the collection of capitation fee has been accepted, as already stated, on all sides and being a matter of policy is not open to challenge as the State is the best judge of the method and means to be adopted for neutralizing this vice29 Capitation fee undermines merit and permits the purchase of seats in medical, engineering and other colleges by the rich and affluent ones. The State laws prohibiting capitation fee are not under challenge and are not open to challenge. To permit any scheme which provides for the admission test being held by the professional colleges themselves will be to totally nullify the attempts to curb the menace of capitation fee and to throw open the doors to the managements of professional colleges to make huge private profits by exploiting the students whose parents may have to part monies or suffer huge financial deprivation. There is no other way of avoiding this dilemma other than by "a common entrance test" or "the single window scheme" which at the same time implement the reservations contemplated by the Constitution.
The State or the University, as a consequence of affiliation and recognition, has a State interest in ensuring that less affluent but meritorious students are not deprived of their access to professional education and furthermore that the reservations provided for Scheduled Castes, Scheduled Tribes, Other Backward Classes, handicapped, children of ex-servicemen or those killed in war are given access to higher education.
RECONSIDERATION OF UNNI KRISHNAN CASE22
I. Unni Krishnan case22 has been correctly decided by recognising the existence of the vice of capitation fee and providing for the steps to be taken to neutralize it through the "common entrance test". The subsequent orders provided for the fixation of a fair and reasonable fee, fair to the institutions and fair to the students as well. This part of Unni Krishnan judgment22 has to be upheld. As would be seen, the Acts passed by the 3 Southern States and the State of Maharashtra long before this judgment, recognized the existence of the vice of capitation fee, prohibited the collection of capitation fee, made it a criminal offence, provided for the fixation of fees and subsequently also evolved the "common entrance test". These laws are not under challenge before the eleven-Judge Bench and therefore apart from Unni Krishnan22 the scheme already stood fulfilled in these States.
II. Unni Krishnan22 has to be overruled only in regard to the 50% payment seats and the 50% free seats. This is because the judgment does not take note of the capacity to pay of the candidates in the lower 50%, who may not be affluent and may be poor as well as the financial situation of the first 50% who may belong to the richer strata of society. This classification, without reference to financial means or the capacity to pay has no nexus with the basis of categorization of payment seats and free seats and therefore will have to be reversed.
III. The vice of capitation fee undoubtedly exists as established by the Parliamentary Debates, the literature on the subject, the preambles of the four Acts passed by the four States. It exists, cutting across dividing lines, in aided or unaided institutions as well as minority or non-minority institutions. The prohibition of capitation fee, the fixation of a fair and reasonable fee and the common entrance test are intended for preventing the collection of capitation fee in the larger interest of the institutions themselves as well as the students and the parents and therefore does not call for interference. In any event, these Acts not being under challenge and the fee fixation provision in Section 12-A of the University Grants Commission Act as well as the Regulations for fixation of fee not being under challenge, they have to be continued without interference. Regulation by the State will be permissible even in the case of minorities collecting capitation fee as this will amount to maladministration. In the case of non-minorities, regulation in public interest, if Article 19(1)(g) applies or through reasonable and non-arbitrary restrictions under Article 14 of the Constitution will be permissible.
APPLICABILITY OF STARE DECISIS
The principle of stare decisis will have no application for the following reasons:
A. The judgments which require reconsideration are mainly Kerala Education case3 decided in 1958 and St. Xavier's case13 decided in 1974. St. Stephen's1 dealt with a limited issue relating to the extent of admissions which an aided minority institution is entitled to make under Article 30 of the Constitution. A sea change has taken place in regard to establishing of colleges and universities for imparting education in professional courses, including Medicine, Engineering, Dentistry and so on. As a result, the vice of capitation fee has become widely prevalent. The minority institutions are claiming a right to admit students of their choice, though Article 30 relates to establishing educational institutions of its choice and not admitting students of its choice. This facilitates negotiating mind-boggling amounts to be paid in cash, in addition to the fee fixed by statutes or by UGC Regulations, for private profit. It is this right of the minority institutions to establish professional colleges that has mainly resulted in the reference being made to the larger Bench. It would be seen that 170 new engineering colleges have come into existence in Tamil Nadu alone between 1993 and 2002. The factual situation on the basis of which the judgments in Kerala Education3 and St. Xavier's13 was delivered has no relevance to the present day environment, as the commercialization of education did not exist as a vice at that time.
B. The judgments have gone to the extent of stating that a single individual belonging to a minority language or minority religion can establish a minority institution and claim Father Thomas Shingare, (2002) 1 SCC 758 para 5 and Mother Provincial, (1970) 2 SCC 417 minority rights. In such a case, according to the earlier judgments of the Courts, institutions imparting "general secular education" are also protected. This overlooks the fact that Article 30, in permitting educational institutions to be established, confers purely a secular right and hence has necessarily to be restricted to the imparting of education by propagating religion or language for the benefit of that minority and not by "general secular education".
C. The relation between Article 29(2) and Article 30 has been wrongly construed by the earlier decisions as taxes paid by other religions would be utilized for the benefit of a minority propagating its religion, which is contrary to the secular character of the Constitution and would violate the spirit underlying Article 27 of the Constitution.
D. The earlier judgments have evolved principles applicable to Article 30 by stressing the right of a religious minority to propagate its religion, while in fact the article equally applies to linguistic minorities as well. Every language is a minority language in this country and no special rights can therefore be claimed as there is no majority linguistic group which can seek to deprive a minority linguistic group its right to establish educational institutions of its choice.
E. Similarly, the judgments relating to Articles 25 and 26 of the Constitution, which authorize the removal of a Mahant or Archakas or to take over the management of a temple are all on the basis that these are secular aspects of religion, have been overlooked. A religious minority, establishing and maintaining an educational institution, surely, cannot have higher rights than those conferred by Articles 25 and 26.
F. The eleven-Judge Bench of the Supreme Court, which heard this very case for over a period of nearly a month by its order dated 4-3-1997 expressly held that the judgments in Kerala Education3 and St. Xavier's13 would be reconsidered by the Bench, as a result of which the principle of stare decisis stands rejected by a eleven-Judge Bench. This would bind another eleven-Judge Bench on this very issue. This order is set out in full below:
"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 In Re Kerala Education Bill, 19573 and Ahmedabad St. Xavier's College Society v. State of Gujarat13 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 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."
BRIEF RESPONSES TO THE QUESTIONS REFERRED TO THE ELEVEN-JUDGE BENCH
Q. 3. (b) To what extent can professional education be treated as a matter coming under minorities' rights under Article 30?
Proposition VI at p. 4 under the heading "Interpretation of Article 30" gives the reasons as to why a professional college is outside the scope of Article 30. Grounds VII, VIII and IX are further contentions in support of the proposition that professional colleges are outside Article 30. Additionally, the whole of the grounds under the heading "Capitation Fee and the Extent of Regulation" at p. 12 onwards, set out the reasons why those institutions imparting professional education can be subjected to special regulations to prevent the vice of capitation fee, irrespective of whether they are minority or non-minority, aided or unaided institutions.
Q. 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?
The discussion at p. 8 under the heading "Interpretation of Article 29(2)" is to the effect that a minority institution can no more claim any right of admission once it receives aid. The State has an interest in regulating institutions for ensuring that Article 38(2) of the Constitution is effectuated and to ensure that more meritorious but less affluent students also have access to education. The minority therefore has a right to establish educational institutions of its choice but not to admit students of its choice except in regard to educational institutions, which are established for propagating the religion or the language of the minority. In any case, no right of admission can be claimed to professional institutions, for the reasons already stated, or in any event unless the criteria set out in Proposition VIII at p. 5 under the heading "Interpretation of Article 30" is satisfied. This contention is only in the alternative. The State can validly ensure implementation of Article 38(2) even in the case of unaided institutions by reason of the State interest involved in an institution to which, recognition has been given by the State or affiliation is given by the university, which is a State agency. (See Unni Krishnan v. State of A.P. 22)
Q. 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
The answer to Question No. 4 covers this question as well. The procedure and method of admission, cannot be in the hands of the institution in regard to the colleges imparting professional education where the vice of capitation fee is sought to be prevented through the University Grants Commission, the Central Board of Secondary Education or the State Government ensuring admissions on merit through the "common entrance test" or through the "single window admissions". If it is held that a certain percentage of students belonging to minority are entitled to admissions, the "common entrance test" would still provide for inter se merit among the minority who have obtained marks above the cut-off minimum to ensure again that Article 38(2) is satisfied. The merits of the single window system of admission is set out at Proposition VII at p. 17 under the heading "Capitation Fee and the Extent of Regulation".
Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc. would interfere with the right of administration of minorities?
Propositions XI and XII at pp. 6 and 7 under the head "Interpretation of Article 30" have set out the reasons as to why a minority institution is not immune from regulation of these aspects in the interest of excellence of education, in the interests of the institution itself, its students and its teachers. In view of education itself being secular, whether the institution is run by a minority based on religion or language, the judgments delivered under Articles 25 and 26 of the Constitution which authorized the taking over of a temple, the removal of a Mahant or of an Archaka would apply with greater force to the provisions of Article 30 of the Constitution. The reasonableness of the regulation, however, would be examined in particular cases as and when the matter is relegated to a smaller Bench.
Q. 8. Whether the ratio laid down by this Court in St. Stephen's case1 (St. Stephen's College v. University of Delhi) is correct? If no, what order?
The ratio is not correct for the reasons given at p. 8 under the head "Interpretation of Article 29(2) of the Constitution". The admission cannot be made, in the case of an aided institution on the basis of the religion or language of a candidate. Even preference relatable to religion or language would violate Article 29(2) because for every student admitted on the basis of such preference, a student would stand excluded because of religion or language.
Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P.22 (except where it holds that primary education is a fundamental right) and the scheme framed thereunder requires reconsideration/modification and if yes, what?
Unni Krishnan22 does not require reconsideration in regard to the following issues:
(a) The finding of the vice of capitation fee,
(b) That the State has an interest in ensuring selection on the basis of merit which is defeated by the institution making admission after taking large amounts towards capitation fee.
(c) Such interest existed by reason of affiliation extended by the university.
(d) That a common entrance test is essential to prevent the commercialization of education, the exploitation of the parents and the students and the allotment of seats other than on the basis of merit, thus excluding the less affluent but more meritorious students from having access to professional colleges.
But Unni Krishnan22 requires reconsideration/modification in regard to 50% payment seats and 50% free seats. This classification has no nexus with the objects sought to be achieved as the means test is not being applied to the first 50% and the capacity to pay is not being applied to the next 50%. The entirety of the free and payment seats classification has to be set aside and a new system has to be introduced, where about 30% of the seats would go to the meritorious but less affluent ones on the basis of freeships or scholarships with a higher than normal rate of fee being charged to the 70% belonging to the more affluent sections of the society for absorbing the cost of freeships and scholarships.
Q. 10. Whether the non-minorities have the right to establish and administer educational institutions under Articles 19(1)(g), 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?
This issue has been dealt with at p. 10 under the head "Applicability of Article 19(1)(g)". Article 19(1)(g) would not apply to the establishing of educational institutions as there is no occupation known as "the occupation of establishing educational institutions". The word "occupation" has been defined as a business, and education is far away from being a business or should not be categorized as a business. Article 21, includes the right to receive education and cannot be further extended to include the right of an entrepreneur or a charitable person to establish an educational institution which could provide a source of income as well. However, a common law right to do all acts which are not expressly prohibited by law would entitle a member of a non-minority group to establish educational institutions subject to regulation by the State through laws or executive instructions which are not arbitrary and unreasonable.
- St. Stephen's College v. University of Delhi, (1992) 1 SCC 558
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- Oxford - Advanced Learner's Dictionary, New Websters Dictionary of English Language, Black's Law Dictionary. See WS Vol. II, p. 1.
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- Kerala Education Bill, In re, 1957, 1959 SCR 995 at pp. 1047 to 1049. See WS Vol. II at pp. 1 to 3.
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- Report of the Official Language Commission, 1956 and 1991 Census of India (Manorama Year Book, 2002), WS Vol. II, pp. 3 to 4.
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- Kerala Education Bill, 1959 SCR 995 at pp. 1079 and 1080, WS Vol. II, pp. 4 to 5.
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- Articles 15(4), 16(4) and 337 and Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 paras 261 and 323. See WS Vol. II, pp. 5 to 6.
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- Golak Nath v. State of Punjab, (1967) 2 SCR 762 - Constitution has to be read as a whole - WS Vol. II, pp. 6-7.
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- Manager, St. Thomas U.P. School v. Commr. & Secy. to General Education Deptt., (2002) 2 SCC 497 at para 5 and State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417. See WS Vol. II at p. 7.
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- S. Azeez Basha v. Union of India, (1968) 1 SCR 833 at p. 846 H - the two being conjunctive and not disjunctive. WS Vol. II at p. 7.
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- Institutions have to be established for the benefit of minorities - A.P Christian Medical Educational Society v. Govt. of A.P., (1986) 2 SCC 667 at p. 676 and Mother Provincial, (1970) 2 SCC 417, para 8 (WS II, pp. 7-8).
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- Object-Oriented Interpretation of the Constitution: S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126 at p. 142 and Interpretation of Statutes by G.P. Singh. See WS Vol. II at pp. 9 to 10.
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- A.P. Christian Medical College Educational Society, (1986) 2 SCC 667 at p. 676 and Parliamentary Debates dated 4-8-1992. See WS Vol. II at pp. 10-12.
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- Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717; Y. Theclamma v. Union of India, (1987) 2 SCC 516; Frank Anthony Public School Employees' Assn. v. Union of India, (1986) 4 SCC 707 WS Vol. II, pp. 12-16.
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- Shri Jagannath Temple, Puri Management Committee v. Chintamani Khuntia, (1997) 8 SCC 422, para 49; Sri Adi Visheshwara v. State of U.P., (1997) 4 SCC 606 paras 28 and 34; Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (1964) 1 SCR 561 at p. 623. See WS Vol. II at pp. 16-18.
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- St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 para 28; Christian Medical College Hospital Employees' Union v. Christian Medical College Vellore Assn., (1987) 4 SCC 691 and downloaded statement on Vellore Christian Medical College. WS Vol. II, pp. 19-21.
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- Dictionary meaning of the word "occupation". See WS Vol. II at pp. 21-22.
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- Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213, paras 89 to 94. See WS Vol. II, pp. 22-24.
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- Education is Charity - Dental Council of India v. Subharti K.K.B. Charitable Trust, (2001) 5 SCC 486 at p. 496, paras 11 and 12. See WS Vol. II, pp. 24-25.
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- Is Article 19(1)(g) available to set up educational institutions - St. John's Teachers Training Institute v. State of T.N., (1993) 3 SCC 595, paras 6 and 7 and Ruth Soren v. Managing Committee, East I.S.S. D.A., (2001) 2 SCC 115. See WS Vol. II, pp. 25-26.
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- Ivor Jenning Law and the Constitution, 5th Edn., at pp. 40-41.
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- Regulatory Laws: Section 3 of the Essential Commodities Act, 1955 and the Control Orders under the Act, Section 18-G of the Industrial Development and Regulation Act, 1955 and Shree Meenakshi Mills Ltd. v. Union of India, (1974) 1 SCC 468. WS Vol. II, p. 30.
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- Vices of Capitation Fee - Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 paras 14 to 21, Unni Krishnan v. State of A.P., (1993) 1 SCC 645 paras 195, 196 and 205, Father Thomas Shingare v. State of Maharashtra, (2002) 1 SCC 758, Rekha Kaul Publication on Vices of Capitation Fees, top up fee concept similar to capitation fee in UK. See WS Vol. II at pp. 30-39.
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- Preamble of Four Capitation Fee Acts of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu: See WS Vol. II at pp. 39-40.
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- Parliamentary Debates dated 4-8-1992. See WS Vol. II at pp. 48-54.
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- Fee regulations - Section 12-A of the UGC Act, and Section 10 of the AICTE Act. WS Vol. II, pp. 40-43.
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- University Grants Commission Resolution dated October 1997 (WS Vol. II, pp. 43-44).
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- Single Window System : 1. Preeti Srivastava (Dr) v. State of M.P., (1999) 7 SCC 120 at p. 155, para 28, Universal Declaration of Human Rights, Article 26 - merit should prevail, Kongu Engineering College case to show the number of colleges coming up, growth of professional institutions - Internet download - data from Ministry of Education. See WS Vol. II at pp. 44-46.
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- Vishaka v. State of Rajasthan, (1997) 6 SCC 241, para 7. WS Vol. II, p. 46.
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- National Policy on Education, 1986 and BALCO Employees' Union v. Union of India, (2002) 2 SCC 333. See WS Vol. II at p. 47.
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