# INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA & ORS

- **Citation:** [2011] 6 S.C.R. 599
- **Court:** Supreme Court of India
- **Decided:** 2011-05-12
- **Case number:** Civil Appeal No. 8170 OF 2009
- **Bench:** B.Sudershan Reddy, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-medical-association-v-union-of-india-ors-27831
- **Pages:** 143

## Headnote

Constitution of India, 1950:
Article 12 - 'State' - Army WelfareEducation Society
(AWES) and Army College of Medical Sciences (ACMS) -
HELD: High Court has held that AWES and ACMS were
neither instrumentalities of State nor could ACMS be held to
A
B
c
be an aided educational institution - Such determinations
D
always present issues of fact and of law - The Court is
disinclined to over-rule the findings of the High Court in this
regard.
Article 15(5) read with Arlicle 162 - Admission to MBBS
course - Reservation for Scheduled Castes, Scheduled
E
Tribes and socially and educationally backward classes of
citizens - Exemption granted to ACMS by Delhi Government
- HELD: The Notification dated 14-08-2008 issued by the
Government of National Capital Territory of Delhi permitting
the ACMS to allocate hundred percent seats in the said
F
college for admission to the wards of Army personnel is ultra
vires the provisions of Delhi Act 80 of 2007 and also
unconstitutional and, as such, is set aside - The power under
Article 162 can not be claimed to set at nought a declared,
specified and mandated policy enacted by the legislature -
G
Delhi Act 80 of 2007, and s.12, including both sub-s. (1) and
(2) are clearly applicable, with respect to admission of
students to ACMS - The admission procedures devised by
Army College of Medical Sciences for admitting the students
599
H
600
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A in the first year MBBS course from a pre-defined source,
caNed out by itself and its parent society, are illegal and ultra
vires the provisions of the Delhi Act 80 of 2007 - Respondents
directed to admit the writ petitioners into the First Year of
MBBS Course in ACMS, in the ensuing academic year,
B notwithstanding the rank secured by them in the GET, by
creating supernumerary seats if the writ petitioners still so
desire, for they have been deprived of their legitimate right
of admission to the course, for no fault of theirs - Delhi
Professional Colleges or Institutions (Prohibition of Capitation
c Fee, Regulation of Admission, Fixation of Non-Exploitative
Fee and Other Measures to Ensure Equity and Excellence)
Act, 2007 - s. 12 - Doctrine of occupied field.
Article 15(5) and 19(6) -
Unaided non-minority
educational institution - HELD: In view of Clause (5) of Article
D 15 of the Constitution, the unaided non-minority educational
institutions would have to comply with the State mandated
reservations, selecting students within the specified
reservation categories on the basis of inter-se merit - With
respect to the remaining seats, the state insist that nonE minority private unaided institutions select the most
meritorious students, as determined by the marks secured in
the qualifying test - Both minority and non-minority unaided
institutions have the right to admit students who have secured
higher marks in the entrance test, and not an equivalence
F between minority and non-minority institutions to engraft their
own "sources" or "classes" of students from within the general
pool - Non-minority private unaided professional colleges do
not have the right to choose their own "source" from within the
general pool - All of the permissible restrictions and
G regulations under Clause (6) of Article 19 that non-minority
institutions would be subject to, would also be applicable with
respect to ACMS - It may indeed be the case that army
personnel, particularly, those at the lower end of the hierarchy
in the army, and their families, may be suffering from great
H hardships - It would indeed be, and ought to be a matter of
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 601
& ORS.
considerable national distress if persons who have agreed to
A
lay down their lilies, for the sake of national security, are not
extended an empathetic understanding of their needs and
aspirations - If any special provisions need to be made to
protect the wards of Army personnel, this may possibly be
done by the State, by laws protected by Clause (5) of Article
B
15

## Text

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[2011] 6 S.C.R. 599
INDIAN MEDICAL ASSOCIATION
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 8170 OF 2009)
MAY 12, 2011
[B.SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Constitution of India, 1950:
Article 12 - 'State' - Army WelfareEducation Society
(AWES) and Army College of Medical Sciences (ACMS) -
HELD: High Court has held that AWES and ACMS were
neither instrumentalities of State nor could ACMS be held to
A
B
c
be an aided educational institution - Such determinations
D
always present issues of fact and of law - The Court is
disinclined to over-rule the findings of the High Court in this
regard.
Article 15(5) read with Arlicle 162 - Admission to MBBS
course - Reservation for Scheduled Castes, Scheduled
E
Tribes and socially and educationally backward classes of
citizens - Exemption granted to ACMS by Delhi Government
- HELD: The Notification dated 14-08-2008 issued by the
Government of National Capital Territory of Delhi permitting
the ACMS to allocate hundred percent seats in the said
F
college for admission to the wards of Army personnel is ultra
vires the provisions of Delhi Act 80 of 2007 and also
unconstitutional and, as such, is set aside - The power under
Article 162 can not be claimed to set at nought a declared,
specified and mandated policy enacted by the legislature -
G
Delhi Act 80 of 2007, and s.12, including both sub-s. (1) and
(2) are clearly applicable, with respect to admission of
students to ACMS - The admission procedures devised by
Army College of Medical Sciences for admitting the students
599
H
600
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A in the first year MBBS course from a pre-defined source,
caNed out by itself and its parent society, are illegal and ultra
vires the provisions of the Delhi Act 80 of 2007 - Respondents
directed to admit the writ petitioners into the First Year of
MBBS Course in ACMS, in the ensuing academic year,
B notwithstanding the rank secured by them in the GET, by
creating supernumerary seats if the writ petitioners still so
desire, for they have been deprived of their legitimate right
of admission to the course, for no fault of theirs - Delhi
Professional Colleges or Institutions (Prohibition of Capitation
c Fee, Regulation of Admission, Fixation of Non-Exploitative
Fee and Other Measures to Ensure Equity and Excellence)
Act, 2007 - s. 12 - Doctrine of occupied field.
Article 15(5) and 19(6) -
Unaided non-minority
educational institution - HELD: In view of Clause (5) of Article
D 15 of the Constitution, the unaided non-minority educational
institutions would have to comply with the State mandated
reservations, selecting students within the specified
reservation categories on the basis of inter-se merit - With
respect to the remaining seats, the state insist that nonE minority private unaided institutions select the most
meritorious students, as determined by the marks secured in
the qualifying test - Both minority and non-minority unaided
institutions have the right to admit students who have secured
higher marks in the entrance test, and not an equivalence
F between minority and non-minority institutions to engraft their
own "sources" or "classes" of students from within the general
pool - Non-minority private unaided professional colleges do
not have the right to choose their own "source" from within the
general pool - All of the permissible restrictions and
G regulations under Clause (6) of Article 19 that non-minority
institutions would be subject to, would also be applicable with
respect to ACMS - It may indeed be the case that army
personnel, particularly, those at the lower end of the hierarchy
in the army, and their families, may be suffering from great
H hardships - It would indeed be, and ought to be a matter of
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 601
& ORS.
considerable national distress if persons who have agreed to
A
lay down their lilies, for the sake of national security, are not
extended an empathetic understanding of their needs and
aspirations - If any special provisions need to be made to
protect the wards of Army personnel, this may possibly be
done by the State, by laws protected by Clause (5) of Article
B
15 -
The private society, of former and current army
personnel by themselves cannot unilaterally choose to do the
same.
Article 15(5), 14 and 38 read with Articles 32 and 226 -
Reservation policy of State - Judicial review of - HELO: C
provisions of new clause (5) of Article 15 do not purport to take
away the power of judicial review, or even access to courts
through Articles 32 or 226.
Article 15(5) - HELD: Clause (5) of Article 15 does not D
violate the basic structure of the Constitution - Given the
absolute necessity of achieving the egalitarian and social
justice goals that are implied by provisions of clause (5) of
Article 15, and the urgency of such a requirement, Article
15(5) is not a violation of the basic structure, but in fact
E
strengthen the basic structure of our constitution -
Constitutional law - Theory of basic structure.
Education/Educational Institutions:
Higher education - Participation of private sector -
F
HELD: Participation of the private sector to function in the field
of higher education, to supplement the role of the State in the
field which has been recognized even in TMA Pai could only
have existed if the State had the power to devise policies
based on circumstances to promote general welfare of the
G
country, and the larger public interest - The same cannot be
taken to mean that a constitutional amendment has occurred,
·in a manner that fundamental alteration has occuffed in the
. basic structure itself, whereby the State is now denuded of its
obligations to pursue social justice and egalitarian ideals,
H
602
SUPREME COURT REPORTS
[2011J 6 S.C.R.
A inscribed as an essential part of our constitutional identity, in
those areas which the State feels that even resources in the
private sector would need to be used to achieve those goals
- Clause (5) of Article 15 strengthens the social fabric in which
the Constitutional vision, goals and values could be better
B achieved and served.
DELHI
PROFESSIONAL
COLLEGES
OR
INSTITUTIONS (PROHIBITION OF CAPITATION FEE,
REGULATION OF ADMISSION, FIXATION OF NONEXPLOITATIVE FEE AND OTHER MEASURES TO
C ENSURE EQUITY AND EXCELLENCE) ACT, 2007:
D
s. 12 - Interpretation of - HELD: The provisions of the
Act do not suffer from any constitutional infirmities and
constitutional validity of the same is upheld.
Interpretation of Statutes:
Unrepeated sections of a previous, statute - If in conflict
with the provisions of the later statute - Relevance and
interpretation of - HELD: In the instant case, the High Court
E was right in holding that Ordinance 30 of GGSIU would be
inapplicable in the case on account of enactment of Delhi Act
80 of 2007 - However, the expression used by the High Court
that Ordinance 30 has "lost its relevance" to the extent that it
may suggest a loss of general relevance, is not correct -
F Reservation Policy for Self-Financing Private Institutions
Affiliated with the Guru Govind Singh lndraprastha University,
2006 (Ordinance 30) - Delhi Professional Colleges or
Institutions (Prohibition of Capitation Fee, Regulation of
Admission, Fixation of Non-Exploitative Fee and Other
G Measures to Ensure Equity and Excellence) Act, 2007- s.12.
Army College of Medical Sciences (ACMS), managed
and run by Army Welfare Education Society (AWES),
located in the National Capital Territory of Delhi (NCT of
H Delhi) and affiliated with the Guru Gobind Singh
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 603
& ORS.
lndraprastha University (GGSIU), was granted certain A
exemptions by the Government of NCT of Delhi from
operation of the provisions of the Delhi Professional
Colleges or Institutions (Prohibition of Capitation Fee,
Regulation of Admission, Fixation of Non-Exploitative Fee
and Other Measures to Ensure Equity and Excellence) B
Act, 2007 (Delhi Act 80 of 2007) with respect to allocations
as between Delhi and non-Delhi students, reservations
as mandated in sub-s. (2) of s.12 of Delhi Act 80 of 2007,
and the requirement that all admissions in such reserved
categories and with respect to remaining seats be based c
on inter-se merit as determined by marks secured in
common entrance test; and allowing ACMS to admit only
wards of army personnel ( both serving and former) in
accordance with ACMS's admission policy. Writ petitions
were filed by the Indian Medical Association and the 0
candidates who otherwise would be eligible to be
considered for admission to ACMS, challenging the
admission policy of ACMS. The Single Judge of the High
Court held that 79% of the seats could be filled by wards
of Army personnel and the remaining 21 % by students
belonging to the general category. The legislatively E
mandated allotment ·of seats for various reserved
categories including Scheduled Castes and Scheduled
Tribes was ignored. The Division Bench of the High Court
upheld the admission policy of the ACMS.
In the instant appeals and the writ petitions, the
contention of the parties boiled down to the questions:
F
(i) "Is ACMS an instrumentality of the State or an aided
institution?"; (ii) Whether the exemptions granted to
ACMS by the Delhi Government were valid? and (iii) G
Whether ACMS can admit only wards of Army personnel
to the seats not covered by reservations mandated by
Delhi Act 80 of 2007, without any regard to the merit of
other Delhi or non-Delhi students who may have secured
higher marks in common entrance test?"
H
604
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A
Disposing of the matters, the Court
HELD: 1.1. At both stages of proceedings in the High
Court the conclusion reached was that the respondents
were neither instrumentalities of State nor could ACMS
B be held to be an aided educational institution. Such
determinations always present issues of fact and of law.
This Court is disinclined to over-rule the findings of the
High Court in this regard. [Para 32) [647-D-E]
1.2. The Division Bench of the High Court was
C correct in holding that Ordinance 30 of GGSIU, entitled
Reservation Policy for Self-Financing Private Institutions
Affiliated with the Guru Govind Singh lndraprastha
University, 2006 (Ordinance 30), making special
provisions for advancement of the weaker sections of the
D society and in particular of persons belonging to
Scheduled Castes and Scheduled Tribes, would be
inapplicable in the case on account of enactment of Delhi
Act 80 of 2007. This is so, because Delhi Act 80 of 2007
is a later enactment, much more general, containing a
E complete code covering the entire terrain of admissions
of students to professional unaided non-minority
institutions affiliated to all universities in NCT of Delhi,
including GGSIU, with specific provisions therein
regarding allocation of seats between Delhi and nonF Delhi students, and reservations applicable in terms of
those students falling within constitutionally permissible
classes .. However, the expression used by the Division
Bench, that Ordinance 30 has "lost its relevance" to the
extent that it may suggest a loss of general relevance is
G not correct. Considerable care ought to be exercised in
delineating the applicability of unrepealed sections of a
previous statute, even if they conflict with the provisions
of a later statute with respect to some specific terrain of
activities. After all, Ordinance 30 of GGSIU may be
H applicable with respect to many other situations, not
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 605
& ORS.
involving the terrain covered by Delhi Act 80 of 2007.
A
[para 33] [647-G-H; 648-A-C]
Municipal Council, Palai v. T.J. Joseph (1964) 2 SCR
87=1963 AIR 1561 - relied on.
2.1. The Notification dated 14-08-2008 issued by the
B
Government of National Capital Territory of Delhi
permitting the ACMS to allocate hundred percent seats
in the said college for admission to the wards of Army
personnel is ultra vires the provisions of Delhi Act 80 of
2007 and also unconstitutional. [para 148] [648-C-D]
C
2.2. At no stage of the proceedings either before the
High Court or in this court, have the respondents
challenged the constitutional validity of Delhi Act 80 of
2007, and specifically the allocations and reservations as 0
mandated by s.12 therein. Delhi Act 80 of 2007 or any
provisions thereof do not suffer from any constitutional
infirmities. The validity of the Delhi Act 80 of 2007, and its
provisions, are accordingly upheld. [Para 29 and 148]
[742-E-F; 645-B-D]
E
2.3. Both the title and the Preamble of Delhi Act 80
of 2007 specifically state that it was an Act to ensure
equity for Scheduled Castes, Scheduled Tribes and other
weaker segments of the population. Consequently, the
enabling provisions clause (5) of Article 15 with respect
F
to making "special provisions" in regard to admission of
Scheduled Castes, Scheduled Tribes, and socially and
educationally backward classes to private unaided nonm i nority educational institutions would extend a
protective umbrella with regard to allocations and G
reservations in s. 12 of Delhi Act 80 of 2007. Provisions
of the said Act with respect to reservations would have
to apply with the full force that they were intended to be.
[para 29] [645-C-E]
H
606
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A
2.4. It is to be noted that Delhi Act 80 of 2007
specifically mandates that all admissions to ACMS would
have to be made in accordance with merit of students,
based on marks secured in the common entrance test.
With respect to those students covered by various
s categories such as Scheduled Castes, Scheduled Tribes
and other constitutionally permissible classes, as
delineated in sub-s.(2) of s.12, and as applicable with
respect to categories described in sub-s.(1) of s.12, the
rule of inter-se merit, based on marks secured in common
c entrance test by students falling into each category, would
apply. That would also mean, then, that with respect to
seats not covered by provisions of sub-s. (2) of s.12, they
would have to be filled in accordance with rule of merit
based on marks secured by general category of students
0
not covered by sub-s. (2) of s.12. [para 30) [645-G-H; 646A-C]
2.5. A reading s.12 of Delhi Act of 2007 synoptically,
makes it clear that sub-s. (2) of s.12 pervades the entire
space of how seats are to be allocated. In fact, the
E preamble to the Act, states that it is being enacted to
provide for "allotment" of seats to "Scheduled Castes,
Scheduled Tribes ........ and other measures to ensure equity
and excellence in professional education in the National
Capital Territory of Delhi" Consequently, it must be read
F that sub-s. (2) of s.12 is one of the primary sections of the
Act and that it would act upon the provisions of sub-s.
(1) of s.12. Sub-s. (2) of s.12 provides that with respect
to seats in sub-s. (1) of s.12, an institution shall reserve
as provided for in clauses (a), (b) and (c) of sub-s. (2) of
G s.12 that follow. Clearly, the phrase "[l]n the seats
mentioned in sub-s. (1)" at the beginning of sub-s. (2) of
s.12 reveals the intent of the legislature that the specific
reservations provided for Scheduled Castes and
Scheduled Tribes and other provisions that may be made
H with respect to other weaker segments and other
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 607
& ORS.
permissible categories of classes, shall be applied with A
respect to each and every category of seats identified in
sub-s. (1) of s.12. Looking at sub-s. (2) of s.12 closely, this
would mean that not only are reservation of seats, for
instance with respect to Scheduled Castes and
Scheduled Tribes, to be made with respect to Delhi B
students, non-Delhi students, and also with respect to all
students admitted under the management quota. [para 37)
[650-B-F]
2.6. Furthermore, by permitting ACMS to admit only
students of wards of army personnel, notwithstanding C
the fact that there could be others who have taken the
common entrance test, and have secured more marks
than the wards of Army personnel, the exemptions
granted by Delhi Government also set at naught the
legislative intent to ensure excellence by mandating that D
all admissions be made on the basis of inter-se merit
within each of the categories of students. The general
category would comprise of all students who have taken
the common entrance test, and otherwise satisfy the
conditions of sub-s. (1) of s.12 of the Delhi Act 80 of 2007, E
after the seats pursuant to sub-s. (2) of s.12 are reserved
i.e., allocated for the described constitutionally
permissible categories therein. The said Act clearly
specifies that its objective is to achieve excellence, and
one of the methods specified to achieve the same is of F
admitting students on the basis of inter-se merit in each
of the categories specified in s.12. The grant of
permission to ACMS to admit students who may have
scored lower marks than others, both within the general
category and also in the reserved categories, results in G
defeat of the aims, objects and purposes of the Act, and
the entire fabric and scheme of the Act gets frustrated.
There is no power conferred on Government of Delhi to
grant any exemption in favour Qf any institution from tt~e
H
•
608
SUPREME COURT REPORTS
(20111 6 S.C.R.
A operation of any of the provisions of the Act. [para 39]
[651-D-H; 652-A-B]
2.7. The claim of the Government of Delhi in its
affidavit that its powers to provide such exemptions also
8
flow from Article 162 of the Constitution can not be
accepted. Article 162 states, "[S]ubject to the provisions
of this Constitution the executive power of a State shall
extend to the matters to which the Legislature of the State
has power to make law." The power under Article 162 can
not be claimed to set at nought a declared, specified and
C mandated policy legislated by the legislature. Further, the
cited portion of Article 162 has been interpreted by this
Court to mean that the State Executive has the power to
make any regulation or order which shall have the effect
of law so long as it does not contravene any legislation
D by the State Legislature already covering the field. In the
instant case, the legislature of NCT of Delhi has
specifically set out a clear policy with respect to
reservations for Scheduled Castes and Scheduled Tribes
and other weaker sections of the population. The duty of
E the executive is to implement that policy, and not to
abrogate it. [para 40] [652-D-H; 653-A-B]
Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR
225= AIR 1955 SC 549; and State of A.P. v. Lavu (1971) 1
F
SCC 607 - relied on.
2.8. The correct interpretation ot sub-s. (b) of s.12(1)
is as follows: first part - "Eighty five percent of the total
seats except the management seats, shall be allocated for
Delhi students" followed by the conjunction "and" and
G then the second part - "the remaining fifteen percent
seats for outside Delhi students or such other allocation
as the Government may by notification in Official Gazette
direct." Therefore, it can only mean that the powers of
Delhi Government are limited to the extent of varying the
H percentage of seats reserved for non-Delhi students, up
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 609
& ORS.
to a maximum of 15%. Further, this is the legislature of A
Delhi, that is legislating for the denizens of NCT of Delhi,
with a primary responsibility for their welfare. Further, in
as much as clause (a) of sub-s. (2) of s.12 provides that
17% of seats be reserved for Scheduled Castes, 1% of
seats be reserved for Scheduled Tribes, and an B
unspecified percentage of seats be reserved for other
Backward classes who are also denizens of Delhi, the
legislature of Delhi would have taken into account the
needs of Scheduled Castes and Scheduled Tribes in
Delhi. The discretion to vary the 15% reserved for nonC
Delhi citizens was in all likelihood to enable the
Government of Delhi to increase the percentage of seats
allocated to denizens of Delhi, in the event a sizeable
number of other backward classes of students also need
to be accommodated in the professional colleges of 0
Delhi. By fixing a number, 15%, for non-Delhi students,
·the legislature intended to set a maximal limit on the
number of non-Delhi students who could be admitted,
and specified the percentage of seats that could be
allocated to Scheduled Castes, Scheduled Tribes and
other weaker sections which could be reduced in the E
event that Government of Delhi needed to accommodate
the special exigencies of the needs of denizens of Delhi,
including but not limited to its backward classes. [para
43) (654-B-D; 655-A·B]
F
2.9. Thus, the exemption granted by the Government
of Delhi allowing ACMS to fill 100% of its seats by wards
of army personnel violates the basic principles of
democratic governance, of the constitutional requirement
that executive implement the specific and mandatory G
policy legislated by the legislature, and violates the
provisions of Delhi Act 80 of 2007. In fact, the actions of
the Government of Delhi, are wholly arbitrary, without any
basis in law, and ultra vires. s.14 of the said Act specifies
that any admission made in contravention of the H
610
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A provisions of the Act or the rules made thereunder, shall
be void, and further s.18 provides that those making
admissions in contravention of the provisions of Delhi Act
80 of 2007 may be punished by imprisonment up to three
years or a fine up to Rupees one Crore or both. Such
B provisions clearly demonstrate the intent of the legislature
that its policy, as specified in the Act, and the purposes
of the Act, not be derogated from in any manner. The said
provisions of the Act are mandatory in nature. The
Government of Delhi has clearly acted on the basis of a
c misplaced belief of its powers, under the Act, a
misunderstanding of the statutory language of the Act,
and its relevant provisions, and also in complete
contravention of constitutional principles. [para 45) [656E-H; 657-A-B]
D
2.10. Therefore, it is held Delhi Act 80 of 2007, and
s.12, including both sub-s. (1) and (2) are clearly
applicable, with respect to admission of students to
ACMS. [para 46) [657-C)
E
3.1. The admission procedures devised by Army
College of Medical Sciences for admitting the students in
the first year MBBS course from a pre-defined source,
carved out by itself and its parent society, are illegal and
ultra vires the provisions of the Delhi Act 80 of 2007. [para
F 148) [657-F]
3.2. In P.A. lnamdar", this Court's emphasis was on
the right of private educational institutions to admit
students on the basis of "merit" as determined by marks
secured in an entrance test. To this extent, the quoted
G paragraphs would stand for the proposition that both
minority and non-minority unaided institutions have the
right to admit students who have secured higher marks
in the entrance test, and not an equivalence between
minority and non-minority institutions to engraft their own
H "sources" or "classes" of students from within the
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 611
& ORS.
general pool. The rights of minority unaided educational
A
institutions to select students, based on merit, is with
respect to students who belong to that same minority. It
is not a right to define a source as such. Minority
institutions have to choose from their own minority
group who are otherwise qualified, and non-minority B
institutions have to choose from the entire group who are
otherwise qualified. The modality of choosing within
those groups has to be on the basis of inter-se ranking
determined in accordance with marks secured in ·the
common entrance test. [paras 54 and 55) [662-D-H; 663- c
G
0 H; 664-A]
* P.A. lnamdar V; State of Maharashtra 2005 (2) Suppl.
SCR 603 = 2005 (6) SCC 537 - refE!rred to.
3.3. In view of Clause (5) of Article 15 of the D
Constitution, the unaided non-minority educational
institutions would have to comply with the State
mandated reservations, selecting students within the
specified reservation categories on the basis of inter-se
merit. With respect to the remaining seats, the state insist E
that non-minority private unaided institutions select the
most meritorious students, as determined by the marks
secured in the qualifying test. In the post clause (5) Article
15 scenario, all the seats that are available in the nonreserved category have to be filled by non-minority
F
institutions on the basis of merit of students, i.e., ranking
determined in accordance with marks secured, in the
general category, comprising of the entire set of students
who have taken the qualifying examination. [paras 56 and
57] [664-G-H; 665-D-E; 666-A-C]
G
3.4. Neither AWES nor ACMS, are protected by any
constitutional provision that allows it to choose to be an
educational institution serving only a small class of
students from within the general pool. Consequently, all
of the permissible restrictions and regulations under H
612
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A Clause (6) of Article 19 that non-minority institutions
would be subject to, would also be applicable with
respect to ACMS. These regulations would also include
a determination of how students in the non-reserved
category of seats, in the post 93rd Amendment scenario,
B be admitted: on the basis of merit, determined by marks
secured on the common entrance test. Maintenance of
overall academic standards, which apparently can be
properly achieved only if high importance is placed on
admitting students on the basis of ranking determined by
c marks secured in entrance tests, is necessarily a State
concern, which it may relax only in respect of those
groups that it is constitutionally permitted to relax for. In
the case of minority educational institutions, that
relaxation is on account of Clause (1) of Article 30
0 provided minority educational institutions are maintaining
their minority status by admitting mostly minority
students except for a sprinkling of non-minorities; and
with respect to non-minority educational institutions, only
with respect to statutorily determi'led percentage of seats
E for Scheduled Castes, Scheduled 1 ribes, and socially and
educationally backward classes as enabled by Clause (5)
of Article 15 and other constitutionally permissible
classes. With respect to socially and educationally
backward classes, such classes can be determined only
after excluding the creamy layer, as held by this Court in
F Ashoka Kumar Thakur*. [para 61) [671-A-H; 672-A]
*Ashoka Kumar Thakur v. Union of India 2008 (4) SCR 1
= (2008) 6 sec 1 - relied on.
G
3.5. Non-minority private unaided professional
colleges do not have the right to choose their own
"source" from within the general pool. The equivalence
between minority and non-minority unaided institutions,
apart from that distinction because of clause (1) of Article
H 30, was to be on the basis that both are subject to
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 613
& ORS.
· reasonable restrictions pursuant to clause (6) of Article
A
19, that neither minority nor non-minority institutions
could maladminister their educational institutions,
especially professional institutions, that affect the quality
of education, and by choosing students arbitrarily from
within the sources. that they are entitled to choose from.. 8
In the case of non-minority institution, especially
professional institutions, the "source" can only be the
general pool, and selection has to be based on inter-se
ranking of students who have qualified and applying or
opting to choose to be admitted to such non-minority C
educational institutions. In the case of minority
educational institutions, the "source" can be delimited to
the particular minority the institution belongs to. The
protection under clause (1) of Article 30 is granted to
minority institution so long as they maintain their minority 0
status. The added protections to minority educational
institutions makes sense only in the event that nonminorities are restricted to choosing from the general
pool, and minorities from the delimited source of their
own minority. Otherwise, Clause (1) of Article 30 would
become meaningless. [para 64] [674-F-H; 675-A-B]
E
3.6. Consequently, it cannot be said that ACMS as a
non-minority professional institution has the right to
delimit a source of students. ACMS has only the right to
choose students from within the general pool. [para 65]
F
[675-B-C]
3.7. The relief of exemptions granted to ACMS to fill
up all of its seats only with wards of army personnel on
account of national interest, given the ratio of P.A.
G
lnamdar, can not be granted on that count. It may indeed
be the case that army personnel, particularly, those at the
lower end of the hierarchy in the army, and their families,
may be suffering from great hardships. It would indeed
be, and ought to be a matter of considerable national
H
614
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A distress if persons who have agreed to lay down their
lives, for the sake of national security, are not extended
an empathetic understanding of their needs and
aspirations. However, the ratio of the judgments in TMA
Pai, Islamic Academy and P.A. lnamdar, by larger
8 benches of this Court, leaves this Court with no options
with respect to holding that ACMS may select only those
students who have scored higher marks in the common
entrance test with respect to seats remaining after taking
into account reserved seats. If any special provisions
C need to be made to protect the wards of Army personnel,
this may possibly be done by the State, by laws
protected by Clause (5) of Article 15. The private society,
of former and current army personnel by themselves
cannot unilaterally choose to do the same. [para 66] [675D E-H; 676-A-B]
TMA Pai Foundation v. State of Karnataka 2002 (3)
Suppl. SCR 587 = (2002) 8 SCC 481 ;Islamic Academy of
Education v State of Kamataka 2003 (2) Suppl. SCR 47 4 =
(2003) 6 SCC 697; and P.A. lnamda. · v. State of Maharashtra
E
2005 (2) Suppl. SCR 603 = 2005 (6) SCC 537 - followed.
4.1. Clause (5) of Article 15 does not violate the basic
structure of the Constitution. [para 148] [742-F-G]
4.2. It would be pertinent to note that the provisions
F of new clause (5) of Article 15 do not purport to take away
the power of judicial review, or even access to courts
through Articles 32 or 226. Neither do the provisions of
clause (5) cf Article 15 mandate that the field of higher
education be taf(en over by the State itself, either to the
G partial or total exclusion, of any private non-minority
unaided educational institutions, a power that was most
certainly granted under clause (6) of Article 19, which had
been inserted by the 1st Constitutional Amendment in
1951. The purport of its provisions is that sub-clause (g)
H clause (1) of Article 19 should not be read to mean that if
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 615
& ORS.
the State were to make "special provisions" with respect A
to admission of Scheduled Castes, Scheduled Tribes, and
socially and educationally backward classes to nonminority unaided educational institutions the same should
not be deemed to be unreasonable. [para 78) [686-E-H;
687-A]
B
l.R. Coelho v. State of Tamil Nadu 2007 (1) SCR 706 =
(2007) 2 SCC 1; 1.C. Golaknath v. State of Punjab (1967) 2
SCR 762; Keshavananda Bharati v. State of Kera/a. 1973
Suppl. SCR 1 = (1973) 4 SCC 225; Waman Rao v. Union
of India, 1981 ( 2) SCR 1 = (1981) 2 SCC 362; M. Nagaraj C
v Union of India (2006) 8 SCC 202; A.K Gopalan v State of
Madras 1950 SCR 88; S.R. Bommai v. Union of India 1994
( 2 ) SCR 644 = (1994) 3 SCC 1; and GVK Industries Ltd.
Vs, /TO (2011) 4 SCC 36 • referred to.
D
4;3. It is now a well settled principle of our
constitutional jurisprudence that Article 14 does not
merely aspire to provide for our citizens mere formal
equality, but also equality of status and of opportunity.
The goals of the nation-state are the securing for all of its E
citizens a fraternity assuring the dignity of the individual
and the unity of the nation. While Justice - social,
economic and political is mentioned in only Article 38, it
was also recognized that there can be no justice without
equality of status and of opportunity. [para 99) [702-A-B]
F
4.4. The placement of clause (5) of Article 15 in the
equality code, by the 93rd Constitutional Amendment is
of great significance. It clearly situates itself within the
broad egalitarian objectives of the Constitution. In this G
sense, what it does is that it enlarges as opposed to
truncating, an essential and indeed a primordial feature
of the equality code. Furthermore, both M. Nagaraj and
Ashoka Kumar Thakur stand for the proposition that
enlargement of the egalitarian content of the equality code
H
616
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A ought not to necessarily be deemed as a derogation from
the formal equality guaranteed by Article 14, 15(1) or 16(1).
Achievement of such egalitarian objectives within the
context of employment or of education, in the public
sector, as long as the measures do not truncate elements
B of formaJ equality disproportionately, were deemed to be
inherent parts of the promise of real equality for all
citizens. As stated succinctly in M. Nagaraj, it is an issue
of proportionality. "Concept of proportional equality
expects the State to take affirmative action in favour of
c disadvantaged sections of the society within the
framework of liberal democracy" and further that "[U]nder
the Indian Constitution, while basic liberties are
guaranteed and individual initiative is encouraged, the
State has got the role of ensuring that no class prospers
0 at the cost of other class and no person suffers because
of drawbacks which is not of his but social." (para 105] [706H; 707-A-D)
E
M. Nagaraj v Union of India (2006) 8 SCC 202 - relied
on.
M.R. Balaji v State of Mysore 1963 Suppl. SCR 439 =
AIR 1963 SC 649; Devadasan v. Union of India 1964 SCR
680 =AIR 1964 SC 179; State of Kera/a v. N.M. Thomas
1976 ( 1 ) SCR 906 =AIR 1976 SC 490 and Indra Sawhney
F v Union of India 1992 (2) Suppl. SCR 454 = (1992) Supp
(3) SCC 217; State of Kamataka v Ranganatha Reddy (1977)
4 sec 471 - referred to.
4.4. The same principles which this Court found to
be applicable in finding egalitarianism to be a part of the
G equality code, at the level of being essential features
informing the entire equality code, per force have to also
be applied to the context of private sector unaided
educational institutions. It is indeed true that the extent
of State involvement in the field of higher education has
H dramatically declined on account of its own financial
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 617
& ORS.
position. An essential understanding was that because A
the private sector would expand even in areas such as
higher education, the burden on the State of providing
such services would decline. The burden of the State
does not comprise merely of the burden of its financial
outlays. The burden of the State obviously also
B
comprises of the positive obligations imposed on it, on
account of the egalitarian component of the equality
code, the directive principles of State policy, and the
national goals of achievement of an egalitarian order and
social justice for individuals and amongst groups that c
those individuals are located in. [para 108] [709-G-H; 710A-F]
,
Indra Sawhney v Union of India 1992 (2) Suppl. SCR
454 = (1992) Supp (3) SCC 217 - M. Nagaraj v Union of
India (2006) 8 SCC 202 Ashoka Kumar Thakur v. Union of D
India 2008 (4) SCR 1 = (2008) 6 SCC 1 - relied on.
4.5. The power of the State to allow participation of
the private sector to function in the field of higher
education could only have existed if the State had the
E
power to devise policies based on circumstances to
promote general welfare of the country, and the larger
public interest. The same cannot be taken to mean that
a constitutional amendment has occurred, in a manner
that fundamental alteration has occurred in the basic
F
structure itself, whereby the State is now denuded of its
obligations to pursue social justice and egalitarian ideals,
inscribed as an essential part of our constitutional
identity, in those areas which the State feels that even
resources in the private sector would need to be used to· G
achieve those goals. [para 109] [711-D-F]
4.6. The conception of social justice is to be found
not just in Article 38, in part IV of our Constitution. The
same concern for social justice is also reflected in Clause
(2) of Article 15. Further, Clause 4 of Article 15 specifies
H
618
SUPREME COURT REPORTS
[2011] 6 S.C.R.
A that "Nothing in this article or in clause (2) of Article 29
shall prevent the State from making any special provision
for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes". [para 112] [714-D-F]
B
4.7. The nature of judicial review of a constitutional
amendment, in which over-arching principles informing
all of the fundamental rights have to be gleaned and
subjected to the test of abrogation of basic structure,
comprises a particular form of constitutional
C interpretation In which the essences of each of those
over-arching principles has to be gleaned and an
amendment to the constitution has to be evaluated as
being lawful or unlawful, in terms of implied limitations of
power, as it effects those essences. (para 121] (722-G-H;
D 723-A-B]
4.8. By the insertion of Clause (5) of Article 15,.the
93rd Constitutional Amendment has empowered the State
to enact legislations that may have very far reaching
E beneficial consequences for the nation. In point of fact,
each and every one of the beneficial consequences
discussed in this judgment as being possible, would
enhance the social justice content of the equality code,
provide for enhancements of social and economic
welfare at the lower end of the social and economic
F spectrum which can only behoove to the benefit of all the
citizens thereby promoting the values inherent in Article
21, promote more informed, reasoned and reasonable
debate by Individuals belonging to various deprived
segments of the population in the debates and formation
G of public opinion about choices being made, and the
course that political and institutional constructs are
taking in this country. Consequently, clause (5) of Article
15 strengthens the social fabric in which the
Constitutional vision, goals and values could be better
H achieved and served. ~para 122] (723-B-E]
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 619
& ORS.
4.9. It cannot be said that TMA Pal, as explained by A
P.A. lnamdar also provide the appropriate content for
undertaking an "essences of rights test" i.e., an "overarching principles" test, as enunciated by M. Nagaraj, to
assess whether a Constitutional amendment, such as the
93rd Constitutional Amendment, violates the basic B
structure. Indeed TMA Pai, is an eleven judge bench
judgment, and P.A. lnamdar a seven judge bench
judgment. However, the very eloquent silence of the two
benches as to whether the contents they have read into
sub-clause (g) of clause (1) of Article 19 to constitute a c
basic feature of the Constitution, is itself a clear indication
that this Court, in those judgments was not engaging in
that type of analysis. This Court, through another
constitutional bench, Islamic Academy, had also
exhaustively examined the ratio in TMA Pai,, and there is 0
not even a whisper therein that there is any indication in
TMA Pai, that the right of private unaided educational
institutions to be free from reservations would constitute
· a right of such magnitude that its partial truncation would
abrogate the basic structure of our Constitution and
change its very identity. What TMA Pai did was essentially E
to engage in a "reasonableness standard" test based on
the text of Article 19(1)(g). Nothing more. [para 130] [728B-F]
4.1 O.