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

- **Citation:** [2003] Supp. 2 S.C.R. 474
- **Court:** Supreme Court of India
- **Decided:** 2003-08-14
- **Bench:** V.N. Khare, S.N. Varia Va, K.G. Balakrishnan, Arijit Pasa Yat, S.B. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/islamic-academy-of-education-and-another-v-state-of-karnataka-and-others-19324
- **Pages:** 103

## Headnote

Constitution of India, 1950-Artic/e 30-Right of minority educational
C institutions-Decided in T.M.A. Pai case-Subsequent statutes/Regulations
led to litigation-Case interpreted in different perspectives-Reference to
Constitution Bench of Supreme Court for interpretation of the case-Held:
There can be no fixing of a rigid fee structure by Government-Each institute
has freedom to fix its own fee structure which should also generate surplusBut the surplu:; to be used only for the educational institutions and not for
D personal gain or any other business or enterprise-Direction to set up a
Committee in each State for considering fixation of fee~Minority and nonminority educational institutions do not stand on the same footing-For
admission in unaided private professional colleges both minority and nonminority, merit is to be criteria-In case of non-minority institution only a
E certain percentage of seats can be reserved for admission and the rest is to
be filled on the basis of counselling by State Agencies according to local
needs-In case of unaided minority professional colleges different percentage
can be fixed keeping in mind the need of the particular community apart from
the local needs-Private unaided professional colleges are not entitled to
admit students by evolving their own method of admission-The management
F of such institutions are to select students of their quota on the basis of
common entrance test either conducted by State or by an Association of all
colleges of a particular type in the State-Direction to State Government to
appoint a Committee to ensure fair test conducted by the Association of
colleges.
G
Pusuant to judgment in T.M.A. Pai Foundation and Ors. v. State of
H
Karnataka and Ors., [20021 8 SCC 481, Union of India, various State
Governments and educational institutions understood the majority judgment
therein in different perspectives. Different statutes/regulations were enacted/
framed by different State Governments. These led to litigations in several
474
ISLAMIC ACADEMY OF EDUCATION. v. ST A TE
475
courts. Interim orders passed therein were challenged in the present petitions, A
wherein majority decision in T.M.A. Pai case was attempted to be interpreted
by various parties as suited to them. Therefore the petitions were referred to
Five Judges Bench for clarification of the judgment in T.M.A. Pai case.
Petitioners/applicants contended that the answers given to the
questions as set out at the end of the majority judgment lay down the true B
ratio of the judgment.
The following questions arose for clarification:
1.
Whether the educational institutions are entitled to fix their
own fee structure;
2.
Whether minority and non-minority educational institutions
stand on the same footing and have the same rights.
3.
Whether private unaided professional colleges are entitled to
fill in their seats, to the extent of 100%, and if not to what
extent; and
4.
Whether private unaided professional colleges are entitled to
admit students by evolving their own method of admission.
Clarifying the judgment in T.MA. Pai case, the Court
c
D
HELD: (Per V.N. Khare, CJ/for himself and/or Variava, Balakrishnan E
and Pasayat, JJ.)
1. The answers to the questions, in the majority Judgment in T.M.A.
Pai case are merely a brief summation of the ratio laid down in the Judgment
The ratio decidendi of a Judgment has to be found out only on reading the
entire Judgment. In fact, the ratio of the judgment is what is set out in the F
judgment itself. The answer to the question would necessarily have to be read
in the context of what is set out in the judgment and not in isolation. In case
of any doubt as regards any observations, reasons and principles, the other
part of the judgment has to be looked into. By reading a line here and there
from the judgment, one cannot find out the entire ratio decidendi of the
judgment. (489-D-F]
G
2.1. There can be no fixing of a rigid fee structure by the Government.
Each institute. must have th

## Text

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A
B
ISLAMIC ACADEMY OF EDUCATION AND ANOTHER
v.
STATE OF KARNATAKA AND OTHERS
AUGUST 14, 2003
[V.N. KHARE, CJ., S.N. VARIA VA, K.G. BALAKRISHNAN, ARIJIT
PASA YAT AND S.B. SINHA, JJ.]
Constitution of India, 1950-Artic/e 30-Right of minority educational
C institutions-Decided in T.M.A. Pai case-Subsequent statutes/Regulations
led to litigation-Case interpreted in different perspectives-Reference to
Constitution Bench of Supreme Court for interpretation of the case-Held:
There can be no fixing of a rigid fee structure by Government-Each institute
has freedom to fix its own fee structure which should also generate surplusBut the surplu:; to be used only for the educational institutions and not for
D personal gain or any other business or enterprise-Direction to set up a
Committee in each State for considering fixation of fee~Minority and nonminority educational institutions do not stand on the same footing-For
admission in unaided private professional colleges both minority and nonminority, merit is to be criteria-In case of non-minority institution only a
E certain percentage of seats can be reserved for admission and the rest is to
be filled on the basis of counselling by State Agencies according to local
needs-In case of unaided minority professional colleges different percentage
can be fixed keeping in mind the need of the particular community apart from
the local needs-Private unaided professional colleges are not entitled to
admit students by evolving their own method of admission-The management
F of such institutions are to select students of their quota on the basis of
common entrance test either conducted by State or by an Association of all
colleges of a particular type in the State-Direction to State Government to
appoint a Committee to ensure fair test conducted by the Association of
colleges.
G
Pusuant to judgment in T.M.A. Pai Foundation and Ors. v. State of
H
Karnataka and Ors., [20021 8 SCC 481, Union of India, various State
Governments and educational institutions understood the majority judgment
therein in different perspectives. Different statutes/regulations were enacted/
framed by different State Governments. These led to litigations in several
474
ISLAMIC ACADEMY OF EDUCATION. v. ST A TE
475
courts. Interim orders passed therein were challenged in the present petitions, A
wherein majority decision in T.M.A. Pai case was attempted to be interpreted
by various parties as suited to them. Therefore the petitions were referred to
Five Judges Bench for clarification of the judgment in T.M.A. Pai case.
Petitioners/applicants contended that the answers given to the
questions as set out at the end of the majority judgment lay down the true B
ratio of the judgment.
The following questions arose for clarification:
1.
Whether the educational institutions are entitled to fix their
own fee structure;
2.
Whether minority and non-minority educational institutions
stand on the same footing and have the same rights.
3.
Whether private unaided professional colleges are entitled to
fill in their seats, to the extent of 100%, and if not to what
extent; and
4.
Whether private unaided professional colleges are entitled to
admit students by evolving their own method of admission.
Clarifying the judgment in T.MA. Pai case, the Court
c
D
HELD: (Per V.N. Khare, CJ/for himself and/or Variava, Balakrishnan E
and Pasayat, JJ.)
1. The answers to the questions, in the majority Judgment in T.M.A.
Pai case are merely a brief summation of the ratio laid down in the Judgment
The ratio decidendi of a Judgment has to be found out only on reading the
entire Judgment. In fact, the ratio of the judgment is what is set out in the F
judgment itself. The answer to the question would necessarily have to be read
in the context of what is set out in the judgment and not in isolation. In case
of any doubt as regards any observations, reasons and principles, the other
part of the judgment has to be looked into. By reading a line here and there
from the judgment, one cannot find out the entire ratio decidendi of the
judgment. (489-D-F]
G
2.1. There can be no fixing of a rigid fee structure by the Government.
Each institute. must have the freedom to fix its own fee structure taking into
consideration the need to generate funds to run the institution and to provide
facilities necessary for the benefit of the students. They must also be able to
generate surplus which must be used for the betterment and growth of that H
476
SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.
A educational institution. As per the majority judgment in T.M.A. Pai case,
imparting of education is essentially charitable.in nature. Thus the surplus/
profit that can be generated must be only for the benefit/use of that educational
institution. Profits/surplus cannot be diverted.for any other·use or purpose
and cannot be used for personal gain or for any other business or enterprise.
B
[491-H; 492-CJ
2.2. As, at present, there are statutes/regulatio.ns which govern the
fixation of fees and as this Court has not yet considered the validity of those
statutes/regulations, in order to give effect to the judgment in TM.A. Pai case
.the respective State Governments concerned shall set up, in each State, a
C Committee. Each educational Institute must place before this Committee, well
in advance ofthe academic year, its proposed fee structure. Along with the
proposed fee structure all relevant documents and books of accounts must
also be produced before the Committee for their scrutiny. The Committee shall
then decide whether the fees proposed by that institute are justified and are
not profiteering or charging capitation fee. The Committee will be at liberty
D to approve the fee structure or to propose some othedee which can be charged
by the institute. The fee fixed by the Committee shall be binding for a period
of three years, at the end of which .period the institute would be at liberty to
apply for revision. Once fees are fixed by the Committee, the institute cannot
charge either directly or indirectly any other amount over and above the
E amount fixed as fees. If any other amount is charged, under any other head or
guise e.g. donations, the same would amount to charging of capitation fee.
The Governments/appropriate authorities should consider framing
appropriate regulations, if not already framed, whereunder if it is found that
an institution is charging capitation fees or profiteering, that institution can
be appropriately penalised and also face the prospect of losing its recognition/
F .affiliation. [492-C-H; 493-A-B)
2.3. An educational institution can only charge prescribed fees for one
semester/year. If an institution feels that any particular student may leave in
midstream then, at the highest, it may require that student to give a bond/
bank guarantee that the balance fees for the whole course would be received
G by the institute even if the student left in midstream. If any educational
institution has collected fees in advance, only the fees of that semester/year
can be used by the institution. The balance fees must be kept invested in fixed
deposits in a nationalised barik. (493-C-E]
3. Non-minority·educational institutions would not have the same rights
H as those conferred on minority educational institutions by Article 30 of the
r'
y.
ISLAMIC ACADEMY OF EDUCATION. v. ST A TE
477
Constitution of India. Non-minority educational institutions do not have the A
protection of Article 30. Thus, in certain matters they cannot and do not stand
on similar footing as minority educational institutions. Even though the
principle behind Article 30 is to ensure that the minorities are protected and
are given an equal treatment yet the special right given under Article 30 does
give them certain advantages. [484-G-H; 495-A]
B
4.1. The majority judgment in T.MA. Pai case makes a distinction
between private unaided professional colleges and other educational
institutions i.e. schools and undergraduate colleges. The Judgment provides
that national interest would prevail, even over minority rights. It is for this
reason that in professional colleges, both minority and non-minority, merit C
has been made the criteria for admission. However, a further distinction has
been made between minority and non-minority professional colleges. It is
provided that in cases of non-minority professional colleges "a certain
percentage of seats" can be reserved for admission by the management. The
rest have to be filled up on basis of counselling by State Agencies. The
prescription of percentage has to be done by the Government according to D
local needs. Keeping this in mind provisions have to be made for the poorer
and backward sections of the society. So far as medical colleges are concerned,
an essentiality certificate has to be obtained before the college can be set up.
In non minority professional colleges admission of students, other than the
percentage given to the management, can only be on the basis of merit as per E
the common entrance tests conducted by Government Agencies. [498-B-E, G]
State of Maharashtra vs. Medical Association and Ors., [2002) 1 SCC
589, referred to.
4.2. A different percentage can be fixed for unaided minority professional
colleges. The expression "different percentage for minority professional F
institutions" carries different meaning than the expression "certain
percentage for unaided professional colleges." In fixing percentage for
unaided minority professional colleges the State must keep in mind, apart
from local needs, the interest/need of that community in the State. The need
of that community, in the State, would be paramount vis-a-vis the local needs. G
[499-F-G)
4.3. A minority professional college can admit, in their management
quota, a student of their own community/language in preference to a student
of another community even though that other student is more meritorious.
However, whilst selecting/admitting students of their community/language, H
478
SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.
A the inter-se merit of those students cannot be ignored. Admission, even of
members of their community/language, must strictly be on the basis of merit
except that in case of their own students it has to be merit inter-se those
students only. Further ifthe seats cannot be filled up from members of their
community/language, then the other students can be admitted only on the basis
B of merit based on a common entrance test conducted by Government Agencies.
(499-H; 500-A-CJ
4.4. Majority judgment in T.MA. Pai case provides that admission by
the management can be by a common entrance test held by "itself or by State/
University". The words "common entrance test" clearly indicate that each
institute cannot hold a separate test. Thus the management could select
C students, of their quota, either on the basis of the common entrance tests
conducted by the State or on the basis of a common entrance test to be
conducted by an association of all colleges of a particular type in that State
e.g. medical, engineering or technical etc. The common entrance test, held
by the association, must be for admission to all colleges of that type in the
D State. The option of choosing, between either of these tests, must be exercised
before issuing of prospectus and after intimation to the concerned authority
and the Committee set up hereinafter. If any professional college chooses not
to admit from the common entrance test conducted by the association then
that college must necessarily admit from the common entrance test conducted
by the State. Selection of students must then be strictly on basis of merit as
E per that merit list. Minority colleges will be entitled to fill up their quota
with their own students on basis of inter-se merit amongst those students. If
it is found that any student has been admitted de-hors merit penalty can be
imposed on that institute and in appropriate cases recognition/affiliation may
also be withdrawn. (500-F-H; 501-A-D]
F
4.5. It cannot be said th~t the majority judgment only permits University/
State to provide for merit based selection at the time of granting recognition/
affiliation, and that once recognition/affiliation is granted to unaided
professional colleges, such a stipulation cannot be provided subsequently. Such
a provision can be made at the time of granting recognition/affiliation as well
G as subsequently after the grant of such recognition/affiliation.
(501-H; 502-A)
4.6. Respective State Governments are directed to appoint a permanent
Committee which will ensure that tiie·tests conducted by the Association of
colleges is fair and transparent. For each State a separate Committee ·shall
H be formed. The Committee shall have powers to oversee the tests to be
.·-
ISLAMIC ACADEMY OF EDUCA TJON v. STATE
479
conducted by the Association.,r This would include the power to call for the A
•
proposed question paper/s, to know the names of the paper setten and
examiners and to check the method adopted to ensure papers are not leaked.
The Committee shall supervise and ensure that the test is conducted in a fair
and transparent manner. The Committee shall have power to permit an
institution, which has been established and which has been permitted to adopt B
its own admission procedure for the last, at least, 25 years, to adopt its own
admission procedure an.d if the Committee feels that the needs of such an
institute are genuine, to admit, students of their community, in excess of the
quota allotted to them by the State Government. Before exempting any institute
or varying in percentage of quota fixed by the State, the State Government
must be heard before the Committee. It is clarified that different percentage C
of quota for students to be admitted by the management in each minority or
non-minority unaided professional college/s shall be separately fixed on the
basis of their need by the respective State Governments and in case of any
dispute as regards fixation of percentage of quota, it will be open to the
management to approach the Committee. It is also clarified that no institute,
which has not been established and which has not followed its own admission D
procedure for the last, at least, 25 years, shall be permitted to apply for or be
granted exemption from admitting students in the manner set out hereinabove.
[502-B-G]
Kera/a Education Bill, AIR (1958) SC 956; Rev Sidhajbhai v. State of E
Bombay, [1963] 3 SCR 837; Rev Father Proost v. State of Bihar, AIR (1969)
SC 465; State of Kera/av. Very Rev Mother Provincial, (1970) 2 SCC 417
and Ahmedabad St Xaviers College Society v. State of Gujarat, (1974) 1 SCC
717, referred to.
Per Sinha, J:( Partly dissenting)
F
1.1. A judgment, it is trite, is not to be read as a statute. The ratio
decidendi of a judgment is its reasoning which can be deciphered only upon
reading the same in its entirety. The ratio decidendi of a case or the principles
and reasons on which it is based is distinct from the relief finally granted or
the manner adopted for its disposal.1552-GI
G
Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and
Ors. v. N.C. Budharaj (Deceased) by LRs. and Ors., [2001] 2 SCC 721; Padma
Sundara Rao (Dead) and Ors. v. State of T.N. and Ors., (2002) 3 SCC 533;
Haryana Financial Corporation v. Jagadamba Oil Mills and Anr., 12002] 3
SCC 496; General Electric Co. v. Renusagar Power Co., 11987] 4 SCC 137; H
480
SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.
A Rajeswar Prasad Mishra v. The State of West Bengal and Anr. AIR 1965 SC
1887, referred to.
1.2. Answers to the questions would not be the ratio to a judgmer.t. They
are merely conclusions. They have to be interpreted, in a case of doubt or
dispute with the reasons assigned in support thereof in the body of the
B judgment, wherefor, it would be essential to read the other .paragraphs of the
judgment also. It is also permissible for this purpose (albeit only in certain
cases and ifthere exist strong and cogent reasons) to look to the pleadings of
the parties. (554-B-C)
Keshav Chandra Joshi and Ors. v. Union of India and Ors., [19921 Supp.
c 1 sec 272~ relied on.
.
D
1.3. A decision is an authority for what it decides and not what can be
logically deduced therefrom. [554-E)
Union of India v. Chajju Ram, (2003] 5 SCC 568, referred to.
2.1. So far as institutions imparting professional education are
concerned, having regard to the public interest, they are bound to maintain
excellence in standard of education. To that extent, there cannot be any
compromise and the State would be entitled to impose restrictions and make
E regulations both in terms of Article 19(l)(g) and Article 30 of the
Constitution of India. The width of the rights and limitations thereof of unaided
institutions whether run by a majority or a minority must conform to the
maintenance of excellence. With a view to achieve the said goal indisputably
the regulations can be made by the State. (545-E-F)
p
2.2. The right to administer does not amount to right to ma!-administer
and the right is not free from regulation. The regulatory measures are
necessary for ensuring orderly, efficient and sound administration. The
regulatory measures can be laid down by the State in the administration of
minority institutions. [545-F-G(
G
2.3. Article 30(1) of the Constitution does not confer an absolute right.
The exercise of such right is subject to permissible State regulations with
an eye on preventing mal-administration. Broadly stated there are
"permissible regulations" and "imperntissible regulations". (545-H]
Sidhajbhai v. State of Gujarat, (1963) 3 SCR 837; State of Kera/av.
H Mother Provincial, (1970) 2 SCC 2079; All Saints High School v. Government
i-
.
,-
'
ISLAMIC ACADEMY OF EDUCATION. v. STA TE
481
of Andhra Pradesh, [1980) 2 SCC 478; Kera/a Education Bill, AIR (1958) A
SC 956; St. X<JViers College v. State of Gujarat, (1974[ l SCC 717 ~J1d Lilly
Kurian v. S.R. Lewina, (1979) 2 SCC 124, referred to.
3.1. In the matter of determination of the fee structure the unaided
institutions exercise a greater autonomy. They, like any other citizens
carrying on an occupation, must be held to be entitled to a reasonable surplus B
for development of education and expansio~ of the institution. Reasonable
surplus doctrine can be given effect to only if the institutions make profits
out of their investments. Economic forces have a role to play: Th~y! thus,
indisputably have to plan their investment and expenditure in such a manner
that they may generate some amount of profit. What is forbidd~n is (a) C
capitation fee and (b) profiteering. While determining the fee structure,
safeguard has to be provided for so that pro~~sional institutions do not become
auction houses for the purpos~ of se!~ing seats. Havi"!g regard!'! the statement
of law laid down in para 56 of majority judgment in T.MA. Pai case, it would
have been better, if sufficient guidelines could have been provided for. Sue~ a
task which is a difficult on~ has to be left to th~ c;ommittee: While fixing the D
fee structure the Com mitt~~ shal! _also tak~ into consideration, inter alia, the
salary or remuneration paid to the members of the faculty and other staff, the
investmtnt made by them, th~ i~fra~tr~~t~r~ pr~videl and .plan for future
development of the institution as al~o ~xp~nsi~n· of th~ educational in~tituti~n.
Future planning or improvement of fa~ilities may be provided for: An institution E
may want to invest in an ~xpensiv~ d~vic~ (for _medi?I colleges) or a pow~rful
computer (for technical colleges). Thes~ fa~tors ar~ also require to b~ taken
care of. The State must evolve a detailed procedure for constitution and smooth
f1;1nctioning of th~ ~ommittee. (5?4-G-H; 555-A; 557-A-q
3.2~ While this Court has not laid dow~ any fix~d guid~lin~s as regard F
fee structure, reasonable surplus should ordina.rily va.ry f_rom 6% to 15%,
as such surplus would (?e utilized for expansion of ~he system and development
of education. (557-D)
·
·
3.3. The institutions shall charge fee only for one year in accordance
with the rules and shall not charge the fees for th~ entire course. Fees once G
fixed should not ordinarily be changed for a perio~ of three years, unless there
exists extra-ordinary reason. However, if for some reason, fees hav_e already
been collected for a longer period the amount so coll~cted shall _be kept in a
fixed deposit in .a nationalized bank against which no loan or adva1_1ce may be
granted so that the interest accrued thereupon may enure to the benefit of
the students concerned. Ordinarily, however, the management should insist H
482
SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.
A for a bond from the concerned students. 1557-El
3.4. With a view to ensure that an educational institution is kept within
its bounds and does not indulge in profiteering or otherwise exploiting its
students financially, it will be open to the statutory authorities and in its
absence by the State to constitute an appropriate body, till appropriate statutory
B regulations are made in that behalf. 1557-FJ
4.1. The right of the minorities and non-minorities is equal. Only
certain additional protection has been conferred under Article 30(1) of the
Constitution of India to bring the minorities on the same platform as that of
non-minorities as regards the right to establish and administer an educational
C institution for the purpose of imparting education to the members of their
own 'community whether based on religion or language. The question, thus,
has to be considered keeping in view the fact that every Indian may be a
minority, either based on religion or language, in one part of the country or
the other. The right of a citizen as a minority in one part of the country cannot
be higher than his right as a member of majority in another part of the
D country. The right of the minorities in the matter of admission of students
can also be restricted like the non-minorities. 1541-F-H; 542-D)
4.2. It would be constitutionally immoral to perpetuate inequality among
majority people of the country in the guise of protecting the constitutional
rights of minorities and constitutional rights of backward and downtrodden.
E All the rights of these groups are part of right to social development which
cannot render national interest and public interest subservient to right of an
individual or right of community. 1545-BI
4.3. Clauses (3) and (4) of Article 15 are enabling provisions. The
States were to take appropriate _steps required therefor within the bounds,
F that is, limited only for uplifting the weaker sections and not for conferring
upon them a preferential right. Reservation can be made inter alia by way of
compelling State necessity. In any event the executive policy of the State cannot
be thrust upon the citizens without any valid legislatio_n. (548-GJ
4.4. In the event tile minorities are not granted the right to establish
G educational institutions of their choice and admit students of their community,
the right of equality would lose all its purpose and relevance. It is in that
sense the rights of the majority and minority must be held to be equal. The
provisions of Articles 19(1 )(g), 29(2) and 30 of the Constitution must be so
construed. 1545-CJ
H
4.5. The professional institutions indisputably are governed by statutes
ISLAMIC ACADEMY OF EDUCATION. v. STA TE
483
like Medical Council of India Act, All India Council for Technical Education A
Act and the University Grants Commission Act. In terms the provisions of
the statutes and regulations framed thereunder the private professional
institutions are required to maintain certain standards. They cannot be
deviated or departed from. In the context of giving admissions to the
meritorious students, it cannot be said that the students belonging to the
minority community shall be admitted without reference to merit. (542-E, F] B
4.6. The courts would not encourage establishment of pseudo minority
institutions imparting professional courses. The statutory rules and
regulations, thus, must be equally applied to all the professfonal institutions
whether aided or unaided whether run by a minority or non-minority. In the C
_,
matter of maintenance of standard, these institutions must be equally treated.
(542-GJ
4.7. The right of the minority institution to admit their own students,
is only by way of protection of the minority interest so that they may get the
benefit of the equality clause. Such a protection should not be confused to be D
a right. (541-D)
4.8. If it be held that the minority institutions can admit all the students
belonging to their own community whereas the non-minority institutions
cannot, the same would amount to re-writing the judgment. (542-HJ
Jennifer Gratz and Patrick Hamacher v. Lee Bollinger, decided on 23rd E
June 2003 by US Supreme Court, referred to.
4.9. It cannot be said that the management of the minority il1stitution
cannot be taken over, whereas that of the non-minority institutions can be.
This Court in no unmistakable terms held that the State cannot take any step F
by way of imposing conditions at the time of grant of recognition which would
amount to nationalization of education. This applies to both minorities and
non-minorities. (540-E-FJ
5.1. What is explained in T.MA. Pai case is that there cannot be any
fixed percentage. Each case will have to be considered on its own merit. Need G
of the institution should be the prime concern. Percentage will have to be
worked out having regard to the need only. It has nothing to do with minority
or non-minority; aided or unaided. (542-C)
5.2. It is not correct to say that only because two different expressions
"certain" and "different" have been mentioned at two places in para 68 of the H
484
SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.
A majority judgment in T;M:A. Pai case, they connote two airrefeiit meanings.
They wiii have to be read in the context in which they have been used; As a
logicai corollary, it will also be incorrect to say that minority unaided
iDstituHons can fill up all the seats from amongst ihe students belonging to
their coinmuriity whereas the rion:minority unaided institutions will have no
sucli right Ttie very fact that different percentages are to be fixed for iniriority
.B unaidei:I ana non-minority unaided institutions is itsetra ctear pointer to show
tliat although (Jiffererit percentages may be prescribed therefor; but both
iriirioi-icy unai<led and non:fufftority institutions can admit the students of their
choice to ihe 'extent of the percentage so pres'cribed; aiheit \\•lthcnit giving a
go bye to the merit criteria. !531-B-t)
c
'Sj. seieetioh or stucients, however, by the minority institutions even ror
ihe me in hers or their coitinniility cannot be bereft or merit. oniy in a given
sitUation less meritorious candidates froni the minority community can be
'1-'·~ .. :1·,+. .1• •.•.• •
11
~~.,.ti" .......... ,.
,.,._ .............. , ............. _
r
.. __ ... •·* ..__
~ ·- ,.. "" • •
,..
.~
.;_,~.
admitted v1s:.a:v1s the general category; but therefor the modahty has to be
workea out. For ifre said purpo"'se de Jacto equality cioctrine may be ·a(>piied
b
in~teaci 'or cie ju re eQ'U'aiiiy as every kirtti or ciiscriffiiiiatioii iffay not be vioiative
·or tite equality ciause. [562-F':.ci
Pradeep jain v. Union of India, f1984i j s·cc 6S4, refei+e<i t6.
5:4. file miil"orlty iris-tihitions im'panii:tg professional c·oufses may itave
E a foga1 -0·r'ci>'n~·t'itiitiona1 right to ho1d their own examination; but a serious
conside'ratiOn 'is required to he bestowed as to whether for 'the purpose of
judgiilg 'inefit they should opt for the Cofomon Entrance Test be'ii:i iiy '.the State.
silclt a c·o"t1rie; 1r resor'"ted to, would not only be h"eiprui roraetermining the
;fr{ter se merit between the sfode'ilts/caildidates but also woY1ld ·be ·sufflCient to
F be indicatiVe of the fact how and 'to what ·extent the students .belonging to
miUorit'ies lag behi"rid the .. najoflty so that special effortS can be made to briffg
their sta.ildard up to the na.tional ievel. 1565-F-GI
5.5. The quota ofSeats to be filled u'p by the State Government for the
poor'or weaker sectio'i'ls Of society may be fixed on the basis ofthe entrance
0 tes·t lie1CI by the co'Dceriieit '.State 'Government ·o·r the unh.-ersffy. Ecoifomic
ci°i!;ability 7if a 1rieritcir'iou's ·~tiident sh"o'iitci 'Come :to the forelront for de'terniining
crite"ria as ·regards "poor or weaker sectio·n·s of the society. (S6S:.H; 566:.A)
5:6. A'ppropriate stiituto·ry iiuthoiity ·on a deeper consideratio·n of the
matter iiii:1y 'prescribe a 's'ultable method for th"e l>iir"pose of11eterritiitfog the
H mfrit ·as aiso :tile 'fafr Mid 'trans"pareiit :nianlie"r in whkh such eYaininations
ISLAMIC ACADEMY OF EDUCATION. v. STA TE
485
can be conducted. Such a power exists under the UGC Act, MCI Act and AICTE A
Act. The relevant enactments wherein these statutory authorities have been
created provide for such law. However, assuming such a machinery is not
evolved, the State may constitute a body. Standard of education at no cost shall
be given a go by. Any institution ifit thinks proper and expedient, may file an
application for grant of exemption so as to enable it to hold its own examination. B
(566-A-C)
5.7. Although local needs, thus, may have to be determined keeping in
view the factors enumerated therein but it must also be noticed that no
essentiality certificate is required to be given by the State in relation to
engineering and other professional colleges. While laying down the law based
on interpretation of a Constitution as well as a judgment, it cannot be held C
that 'local needs' must be referable to the medical education. Furthermore, it
may be difficult to give a restrictive meaning to the expression 'local needs'
i.e. keeping the same confined to the area where the educational institution
is sought to be established inasmuch as the right of minority extends to the
entire State and, thus, the local needs may also have direct nexus having D
regard to the need of the State. (552-B-D]
State of Maharashtra v. Indian Medical Association and Ors., (2002)
1 sec 580, disti:lguished.
5.8. In T.MA. Pai case it was laid down that certain conditions can be
imposed as regards admission of students, mode of holding examinations at E
the time of grant of recognition. It would be too much to say that only because
an institution receives recognition/affiliation at a distant point of time the
appropriate Government is denuded of its power to lay down a1iy law in
imposing any fresh condition despite the need of change owing to passage of
time. Furthermore, the Parliament and the State Legislatures are not denu<led F
of their power having regard to restrictions that may satisfy the test of clause
(6) of Article 19 of the Constitution oflndia or regulations in terms of Article
30 depending upon the national interest/public interest and other relevant
factors. However, the State/University while granting recognition or the
affiliation cannot impose any condition in furtherance of its own needs or in
pursuit of the Directive Principles of State.Policy. [574-G-H; 575-A-B)
G
5.9. With a view to avoid any future controversy, Court may not fix a
definite percentage for the said purpose. Different institutions may be
established by different minority communities. The need of the minority
community may differ from State to State. The need of the minority community
may have a nexus with the population belonging to that community in that H
486
SUPREME COURT REPORTS [2003] su'pp_ 2 S.C.R.
A State. It will further depend upon various other relevant factors. The
percentage of seats will also depend upon the need of the community in a
particular State as also the need of the institution itself. The nature of the
professional course would also have relevance. All these factors must be taken
into consideration by the appropriate Committee or Body so long a statutory
regulation is not framed in this behalf. Furthermore, the need of the community
B vis-a-vis the local needs must be judged upon taking into consideration the
relevant factors and ignoring irrelevant ones. Local needs, if it is compelling
state interest, will have a primacy over the need of the minority community
and in that view of the matter it would not be correct to lay down a proposition
of law that the need of that community in the State would be paramount Each
C case, thus, has to be considered on its own merit and no hard and fast rule
can be laid down therefor. (567-C-D, F-H; 568-A]
6. The right of development from the human right point of view must
be construed liberally. When there are two competing human rights namely
human rights for the religious minorities and the human rights for
D development, having regard to the economic and national interest of the
country in the matter of admission of students, the latter should be allowed to
prevail subject to protection of the basic minority rights. The State may have
to strike a delicate balance between these two competing rights. Furthermore,
the right to admit students may vary from course to course, discipline to
E discipline. At the stage of post graduate level, there may be only one seat or
two seats, and, thus, in such a situation the right of the minority instituti1Jns
to· admit a student may be less than in the case of non-professional course.
(572-E-FI
F
Kapila Hingorani v. State of Bihar, JT (2003) 5 SC 1, referred to.
Munn v. Illinois, (1877) 94 US 113, referred to.
7. The superior courts in India exist for interpretation of Constitution
or interpretation of statutes. They cannot evolve a fool-proof system on the
basis of affidavits filed by the parties or upon hearing their counsel. Certain
G details of vexing problems on the basis of the interpretation given by this Court
must be undertaken by the statutory bodies which have the requisite expertise.
It is expected that statutory bodies would be able to perform their duties for
which they have been established. The doors of the Court should not be
knocked every time, if a problem arises in implementation of the judgment,
however slight it may be. The Court has its own limitations. The problems
H which can be sorted at the ground level by holding consultations should not
ISLAMIC ACADEMY OF EDUCATION. v. STATE
487
be allowed to be brought to the Court. In that view of the matter, Committees A
have been directed to be set up for the aforementioned purposes. (575-F-H)
CIVIL ORIGINAL mRISOICTION: Writ Petition (C) No. 350of1993.
(Under Article 32 of the Constitution of India.)
WITH
SLP(C)Nos.11286, 11391, 11189-11195/2003, W.P.(C)Nos.355/93, 174/
2003, T.P.(C) Nos. 286-288/2003,SLP(C) Nos. 3465-3466, 3942-3943, 4002-4003,
9253-9254, 10561/2003, W.P.(C) Nos. 261, 275, 280, 289 of2003.
Raju Ramachandran and R.N. Triv\!di, Additional Solicitor Generals, F.S.
B
c
Nariman, Rakesh Dwivedi, AK.Ganguli, H.N. Slave, K.K. Venugopal, Dr. Rajiv
Dhawan, Mohan Parasaran, P.P. Rao, V.R. Reddy, Dipankar P. Gupta, S.K.
Dholakia, T.R. Andhayarunjina, Kailash Vasdev, R. Mohan, K. Rajendra
Chowdhary, M.N. Krishnamani, Yashank Adhyaru, P.S. Mishra, Sr. Advs., Dr.
(Mrs.). Roxna S. Swamy, A. Lobo, Subhash C. Sharma, Ramesh N. Keswani, D
Bharat Sangal Seshachala, Ms. Niranjana Singh, Dayan Krishnan, Nikhil
Nayyar, Trideep Pias, Abhishek Chaudhary, Ms. Vimla Sinha, M.V. Seshachala,
Madhu Naik, S. Sukumaran, Suresh Unnikrishnan, Ms. Divya Nair, K. Rajeev,
Madhusudan R. Naik, S. Ravindra Bhat, Naveen R. Nath, Sanjay Sharawat,
Ms. Hetu Arora, Vijay Narain, C.B.N. Babu, Bimal Roy Jad, Ratan Singh, Adv. E
General for State ofKerala, K.R. Sasiprabhu, John Mathew, Anil Thomas, G.
Prakash, S. Udaya Kumar Sagar, Ms. Bina Madhavan, Prasanth P., P.H. Parekh,
Krishna Srinivasan, E.R. Kumar, Rohit Alex, S. Nanda Kumar, V. Vijayan, M.
Yogesh Kanna, Jitendra Shankar, Anuj Srivastav, Rakesh K. Sharma, Ajit
Kumar Sinha, S.W.A. Qadri, Ms. Rekha Pandey, D.S. Mehra Ms. Anil Katiyar,
K.C. Kaushik, Ashok Kumar Pandey, Pritish Kapur, Prateek Jalan, Sunil F
Mathews, A.N. Jaya Ram, Adv. General for State of Kamataka, Sanjay R.
Hegde, Satya Mitra, Anil K. Mishra, Ms. Mahalaxmi Pavani, Maninder Singh,
Ms. Pratibha M. Singh, Angad Mirdha, Ankur Talwar, Kirtiman Singh, D.S.
Mehra, G. Prabhakar, J.S. Attri, Gopal Prasad, T.V. Ratnam, K. Subba Rao, Ms.
A. Subhashini, S.R. Bhat, Ms. Manakshi Vij, T.N. Subramanium, G
Bhavanishankar V. Gadnis, Shiv Kumar Suri, A. Mariarputham, Ms. Aruna
. Mathur, A.K. Srivastava, S.S. Shamshery, Ms. Krishna Sarma, Ms. Asha G.
Nair, V.K. Sidharthan, Sakesh Kumar, S.K. Agnihotri, T.C. Sharma, Ms. Neelam
Sharma, Ajay Sharma, KH. Nobin Singh, Ms. H. Wahi, U.U. Lalit, S.S. Shinde,
Mukesh K. Giri, S.K. Shandilya, Ms. V.D. Khanna, Ranji Thomas, Ms. Bharati
Upadhyay, Arun Pednekar, V.N. Raghupathy, Anil Shrivastav, Gopal Singh, H
488
SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.
A Navin Prakash, Ms. Kirti Mishra, Anis Suhrawardy, Neeraj Jain, Ms. Kavita
Wadia, V.G. Pragasam, A.S. Rawat Additional Advocate General for State of
Uttaranchal, J.K. Bhatia, R.S. Suri, Jagjit Singh Chhabre, Chandra Bhushan
Prasad, Shailesh Madiyal, C.S. Vaidyanathan, P.N. Ramalingam, V. Balaji, T.
Raja, Rakesh K. Sharma, Prashant Bhushan, N.L. Ganpathi, Bharat Kumar,
Bhupender Yadav, Ms. Sheela Goel, Ms. Sumita Hazarika, Ms. Madhu
B Moolchandani, R. Santhana Krishnan, D. Mahesh Babu, Duval C. Dave, Ms.
Apama Bhat, P. Ramesh Kumar, Ejaz Maqbool, Wajid Ali Kami!, U]wal Kr. Jha,
Ms. Minakshi Nag, Ms. Sarla Chandra, Sanjay Sen, Rana S. Biswas, Gourav
Agarwal, Ptasant Kumar, Joseph Pookkatt, T.N. Subramanian, M. Qamaruddin,
Mrs. M. Qarriaruddin, Arribar Qamaruddin and Manish Goswami, Advs., with
C them for the appearing parties.
The Judgment of the Court were delivered by
V. N. KHARE, CJl. For himself and for Variava, Balakrishnan and Pasayat,
JJ. On 31st October, 2002 eleven Judge Bench of this Court delivered the
D Judgment in the case oft.MA. Pai Foundation and Ors. v. State of Karnataka ·
and Ors., [2002] 8 SCC 481. A brief history as to how a eleven Judge Bench
of this Court came to decide this case is set out in para 3 of the judgment,
which reads as under:
"3. The hearing of these cases has had a chequered history. Writ
E
Petition No.-350 of 1993 filed by the Islamic Academy of Education
and connected petitions were placed before a Bench of five Judges.
As the Bench was prima facie of the opinion that Article 30 did not
clothe a minority educational institution with the power to aoopt its
own method of selection and the correctness of the decision of this
F
G
Court in St Stephens College versus University of Delhi was doubted,
it was directed that the questions that arose should be authoritatively
answered by a larger Bench. These cases were then placed before a
bench of seven Judges. The questions framed were recast and on 62-1997, the Court directed that the matter be placed before a Bench
of at least eleven Judges, as it was felt that in view of the Fortysecond Amendment to the Constitution, whereby "education" had .
been included in Entry 25 of List III of Seventh Schedule, the question
of who would be regarded as a "minority" was required to be considered
because the earlier case-law reiated to the pre-amendment era, when
education was only in the State List... ... "
H After the Judgment was delivered, on 3 lst October 2002, the Union of India,
. .,
...
ISLAMIC ACADEMY OF EDUCATION. v. STA TE [V.N. KHARE, CJ.)
489
various State Governments and the educational institutions understood the A
majority judgment in different perspectives. Different statutes/regulations were
enacted/framed by different State Governments. These led to litigations in
several Courts. Interim orders passed therein have been assailed before this
Court.