REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
T.C.(C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS ...Petitioners
VERSUS
UNION OF INDIA AND ORS. ...Respondents
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J U D G M E N T
ALTAMAS KABIR, CJI.
1. Four notifications, two dated 21.12.2010 and the other two dated
31.5.2012, issued by the Medical Council of India and the Dental Council of
India, are the subject matter of challenge in all these matters which have
been heard together by us. Notification No. MCI-31(1)/2010-MED/49068
described as "Regulations on Graduate Medical Education (Amendment) 2010,
(Part II)" has been published by the Medical Council of India to amend the
"Regulations on Graduate Medical Education, 1997". Notification
No.MCI.18(1)/2010-MED/49070 described as "Post-graduate Medical Education
(Amendment) Regulation, 2010 (Part II)" has been issued by the said Council
to amend the "Post Graduate Medical Education Regulations, 2000". Both the
Regulations came into force simultaneously on their publication in the
Official Gazette. The third and fourth Notifications both bearing No. DE-
22-2012 dated 31.5.2012, relating to admission in the BDS and MDS courses
published by the Dental Council of India, are similar to the notifications
published by the MCI.
2. The four aforesaid Notifications have been challenged on several
grounds. The major areas of challenge to the aforesaid Notifications are:
(i) The powers of the Medical Council of India and the Dental Council
of India to regulate the process of admissions into medical colleges
and institutions run by the State Governments, private individuals
(aided and unaided), educational institutions run by religious and
linguistic minorities, in the guise of laying down minimum standards
of medical education, as provided for in Section 19A of the Indian
Medical Council Act, 1956, and under Entry 66 of List I of the
Seventh Schedule to the Constitution.
(ii) Whether the introduction of one National Eligibility-cum-Entrance
Test (NEET) offends the fundamental right guaranteed to any citizen
under Article 19(1)(g) of the Constitution to practise any profession
or to carry on any occupation, trade or business?
(iii) Whether NEET violates the rights of religious and linguistic
minorities to establish and administer educational institutions of
their choice, as guaranteed under Article 30 of the Constitution?
(iv) Whether subordinate legislation, such as the right to frame
Regulations, flowing from a power given under a statute, can have an
overriding effect over the fundamental rights guaranteed under
Articles 25, 26, 29(1) and 30 of the Constitution?
(v) Whether the exclusion of Entry 11 from the State List and the
introduction of Entry 25 in the Concurrent List by the Constitution
Forty Second (Amendment) Act, 1976, makes any difference as far as
the Regulations framed by the Medical Council of India under Section
33 of the 1956 Act and those framed by the Dental Council of India
under Section 20 of the Dentists Act, 1948, are concerned, and
whether such Regulations would have primacy over State legislation on
the same subject?
(vi) Whether the aforesaid questions have been adequately answered in
T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], and
in the subsequent decisions in Islamic Academy of Education Vs. State
of Karnataka [(2003) 6 SCC 697], P.A. Inamdar Vs. State of
Maharashtra [(2005) 6 SCC 537] and Indian Medical Association Vs.
Union of India [(2011) 7 SCC 179]? and
(vii) Whether the views expressed by the Constitution Bench comprised of
Five Judges in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC
120] have any impact on the issues raised in this batch of matters?
3. In order to appreciate the challenge thrown to the four
notifications, it is necessary to understand the functions and duties of
the Medical Council of India under the Indian Medical Council Act, 1956,
and the Dental Council of India constituted under the Dentists Act, 1948.
The submissions advanced in regard to the MBBS and Post-graduate courses
will apply to the BDS and MDS courses also.
4. The Indian Medical Council Act, 1933, was replaced by the Indian
Medical Council Act, 1956, hereinafter referred to as "the 1956 Act", inter
alia, with the following objects in mind :-
"(a) to give representation to licentiate members of the medical
profession, a large number of whom are still practicing in the
country;
(b) to provide for the registration of the names of citizens of
India who have obtained foreign medical qualifications which
are not at present recognized under the existing Act;
(c) to provide for the temporary recognition of medical
qualifi-cations granted by medical institutions in countries
outside India with which no scheme of reciprocity exists in
cases where the medical practitioners concerned are
attached for the time being to any medical institution in India
for the purpose of teaching or research or for any charitable
objects;
(d) to provide for the formation of a Committee of Post-
graduate Medical Education for the purpose of assisting the
Medical Council of India to prescribe standards of post-graduate
medical education for the guidance of universities and to
advise universities in the matter of securing uniform standards
for post-graduate medical education throughout India;
(e) To provide for the maintenance of an all-India
register by the Medical Council of India, which will contain the
names of all the medical practitioners possessing recognized
medical qualifications."
5. The Medical Council of India, hereinafter referred to as "MCI", has
been defined in Section 2(b) of the 1956 Act to mean the Medical Council of
India constituted under the said Act. The Council was constituted under
Section 3 of the Indian Medical Council Act, 1956. Section 6 of the
aforesaid Act provides for the incorporation of the Council as a body
corporate by the name of Medical Council of India, having perpetual
succession and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and to sue and be sued by the said
name.
6. The powers vested in the MCI are essentially recommendatory in
nature. Section 10A, which was introduced in the 1956 Act by Amending Act
31 of 1993, with effect from 27th August, 1992, inter alia, provides that
notwithstanding anything contained in the Act or any other law for the time
being in force:-
(a) no person shall establish a medical college; or
(b) no medical college shall :-
(i) open a new or higher course of study or training
(including a postgraduate course of study or training) which would
enable a student of such course or training to qualify himself for
the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of
study or training (including a postgraduate course of study or training),
except with the previous permission of the Central Government obtained in
accordance with the provisions of this section.
Under Section 10A the function of the MCI is purely recommendatory
for the purpose of grant of permission by the Central Government to
establish a new medical college or to introduce a new course of study.
7. Section 19A which was introduced into the 1956 Act by Act 24 of
1964 with effect from 16th June, 1964, provides for the Council to
prescribe "minimum standards of medical education". Since Section 19A will
have some bearing on the judgment itself, the same is extracted hereinbelow
in full :-
"19A. Minimum standards of medical education - (1) The Council
may prescribe the minimum standards of medical education
required for granting recognised medical qualifications (other
than postgraduate medical qualifications) by universities or
medical institutions in India.
(ii) Copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Council to all
State Governments and the Council shall before submitting the
regulations or any amendment thereof, as the case may be, to the
Central Government for sanction, take into consideration the
comments of any State Government received within three months
from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council
on the efficacy of the regulations and may recommend to the
Council such amendments thereof as it may think fit."
8. Section 20 of the 1956 Act, provides for a Post-graduate Medical
Education Committee to assist the Medical Council of India to prescribe
standards of post-graduate medical education for the guidance of the
Universities. For the sake of reference, the relevant portions of Section
20 of the 1956 Act with which we are concerned, are also extracted
hereinbelow :-
"20. Post-graduate Medical Education Committee for assisting
Council in matters relating to post-graduate medical education -
(1) The Council may prescribe standards of Postgraduate Medical
Education for the guidance of Universities, and may advise
Universities in the matter of securing uniform standards for
Postgraduate Medical Education through out India, and for this
purpose the Central Govt. may constitute from among the members
of the Council a Postgraduate Medical Education Committee
(hereinafter referred to as the Post-graduate Committee).
9. By the first of the two Notifications dated 21st December, 2010,
being MCI-31(1)/2010-Med./49068, the Medical Council of India, in purported
exercise of the powers conferred by Section 33 of the 1956 Act, made
various amendments to the 1997 Regulations on Graduate Medical Education.
The most significant amendment, which is also the subject matter of
challenge in some of these writ petitions and transferred cases, is clause
5 in Chapter II of the Regulations. The relevant paragraph in the
Amendment Notification reads as follows:
"6. In Chapter II, Clause 5 under the heading "Procedure for
selection to MBBS Course shall be as follows" shall be
substituted as under:-
I. There shall be a single eligibility cum entrance
examination namely 'National Eligibility-cum-Entrance Test for
admission to MBBS course' in each academic year. The overall
superintendence, direction and control of National Eligibility-
cum-Entrance Test shall vest with Medical Council of India.
However, Medical Council of India with the previous approval of
the Central Government shall select organization/s to conduct
'National Eligibility-cum-Entrance Test for admission to MBBS
course.
II. In order to be eligible for admission to MBBS course for a
particular academic year, it shall be necessary for a candidate
to obtain minimum of 50% (Fifty Percent) marks in each paper of
National Eligibility-cum-Entrance Test held for the said
academic year. However, in respect of candidates belonging to
Scheduled Casts, Scheduled Tribes and Other Backward Classes,
the minimum percentage shall be 40% (Forty Percent) in each
paper and in respect of candidates with locomotory disability of
lower limbs, the minimum percentage marks shall be 45% (Forty
Five Percent) in each paper of National Eligibility-cum-Entrance
Test:
Provided when sufficient number of candidates belonging to
respective categories fail to secure minimum marks as prescribed
in National Eligibility-cum-Entrance Test in any academic year
for admission to MBBS Course, the Central Government in
consultation with Medical Council of India may at its discretion
lower the minimum marks required for admission to MBBS Course
for candidates belonging to respective categories and marks so
lowered by the Central Government shall be applicable for the
said year only.
III. The reservation of seats in medical colleges for respective
categories shall be as per applicable laws prevailing in States/
Union Territories. An all India merit list as well as State-
wise merit list of the eligible candidates shall be prepared on
the basis of the marks obtained in National Eligibility-cum-
Entrance Test and candidates shall be admitted to MBBS course
from the said lists only.
IV. No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Sub Clause(ii) above shall be
admitted to MBBS Course in the said academic year.
V. All admissions to MBBS course within the respective
categories shall be based solely on marks obtained in the
National Eligibility-cum-Entrance Test.
(Dr. P. Prasannaraj)
Additional Secretary
Medical Council of India"
10. Similarly, by virtue of Notification No. MCI.18(1)/2010-Med./49070,
in purported exercise of the powers conferred by Section 33 of the 1956
Act, the Medical Council of India, with the previous approval of the
Central Government, made similar amendments to the Postgraduate Medical
Education Regulations, 2000, providing for a single eligibility cum
entrance examination. For the sake of reference, the portion of the
notification which is relevant for our purpose is extracted hereinbelow:
"No. MCI.18(1)/2010-Med./49070. – In exercise of the powers
conferred by Section 33 of the Indian Medical Council Act,
1956(102 of 1956), the Medical Council of India with the
previous approval of the Central Government hereby makes the
following regulations to further amend the “Postgraduate Medical
Education Regulations, 2000”, namely:-
1. (i) These Regulations may be called the Postgraduate Medical
Education (Amendment) Regulations, 2010 (Part-II)”.
(ii) They shall come into force from the date of their
publication in the Official Gazette.
2. In the “Postgraduate Medical Education Regulations, 2000”,
the following additions /modifications / deletions /
substitutions, shall be as indicated therein:-
3. Clause 9 under the heading ‘SELECTION OF POSTGRADUATE
STUDENTS’ shall be substituted as under:-
“9. Procedure for selection of candidate for Postgraduate
courses shall be as follows:
I. There shall be a single eligibility cum entrance
examination namely ‘National Eligibility-cum-Entrance Test for
admission to Postgraduate Medical Courses’ in each academic
year. The overall superintendence, direction and control of
National Eligibility-cum-Entrance Test shall vest with Medical
Council of India. However, Medical Council of India with the
previous approval of the Central Government shall select
organization/s to conduct ‘National Eligibility-cum-Entrance
Test for admission to Postgraduate courses’."
Two similar Notifications both bearing No.DE-22-2012 dated
31.5.2012, were published by the Dental Council of India for the same
purpose.
11. The challenge to these Notifications has thrown up various issues,
which include the powers of the Central and the State Governments to
legislate on matters relating to education under Entry 66 of List I of the
Seventh Schedule to the Constitution and Entry 25 of List III which was
introduced by way of the Constitution (Forty-second Amendment) Act, 1976,
having particular regard to the fact that the previous Entry No. 11 in the
State List, was omitted by the said amendment, doing away with education as
a State subject and denuding the State of its powers to legislate on
matters relating to education except in accordance with Entry 25 of the
Concurrent List. In fact, what has been pointed out on behalf of some of
the parties is that by omitting Entry 11 from the State List and including
Entry 25 in the Concurrent List of the Seventh Schedule, the Union
Government acquired the authority to also legislate on matters relating to
education, which it did not have previously.
12. Another common submission, which is of great significance as far as
these matters are concerned, was with regard to the adverse impact of the
single entrance examination on the fundamental right guaranteed to all
citizens under Article 19(1)(g) of the Constitution to practise any
profession, or to carry on any occupation, trade or business. The
provisions of Article 30, preserving the right of both religious and
linguistic minorities, to establish and administer educational institutions
of their choice, were also highlighted by learned counsel for some of the
Petitioners.
13. The major challenge, however, was with regard to the MCI's attempt
to regulate admissions to the M.B.B.S. and Post-graduate Courses in all
medical colleges and medical institutions in the country run by the
different State Governments and by private agencies falling within the
ambit of Article 19(1)(g) and in some cases Article 30 of the Constitution
as well by introducing NEET. One of the facets of such challenge was the
inter-play of Article 29(2) and Article 30(1), as also Article 30(2) of the
Constitution. Various authorities have been cited on behalf of the
different parties, harking back to the Presidential Reference in the Kerala
Education Bill case [(1959] S.C.R. 995], and the subsequent views, which
have been expressed on most of the aforesaid issues by various combinations
of Judges, which include combinations of Eleven-Judges, Nine-Judges, Seven-
Judges, Five-Judges and Three-Judges, of this Court. While most of the
decisions touch upon the main theme in these matters regarding the right of
either the Central Government or the State Government or the MCI to
regulate admissions into medical colleges, the issue raised before us
concerning the authority of the MCI and the DCI to conduct an All India
Entrance Examination, which will form the basis of admissions into the
M.B.B.S. as well as Post-graduate Courses in all medical colleges and
institutions all over the country, could not be considered in the earlier
judgments. As a result, after the introduction of NEET, admissions to the
M.B.B.S. and Post-graduate courses and the BDS and MDS courses can be made
only on the basis of the Select List prepared in accordance with the
results of the All India Entrance Test, which would not only eliminate a
large number of applicants from admission to the medical colleges, but
would also destroy the very essence of Articles 25, 26, 29(1) and 30 of the
Constitution, since admission is one of the more important functions of an
institution.
14. The submissions in these cases were commenced by Mr. Harish Salve,
learned senior counsel appearing for the Christian Medical College,
Vellore, and the Christian Medical College, Ludhiana, the Petitioners in
Transferred Cases (C) Nos. 98-99 of 2012. Mr. Salve's submissions were
supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan, Mr. K.K. Venugopal and
Mr. R. Venkataramani, learned senior counsel, and several others appearing
for some of the religious and linguistic minorities referred to in Article
30 of the Constitution.
15. Mr. Salve submitted that the two Notifications both dated 21st
December, 2010, incorporating amendments in the Regulations on Graduate
Medical Education, 1997 and the Post-Graduate Medical Education
Regulations, 2000, and introducing a single National Eligibility-cum-
Entrance Test (NEET) for admission to the MBBS course and the Post-graduate
course in each academic year throughout the country, had been challenged by
the Petitioners before the Madras High Court, in Writ Petition Nos.24109 of
2011 and 24110 of 2011. Mr. Salve urged that the said amendments stifled
and stultified the fundamental rights guaranteed to religious minorities
under Articles 25, 26, 29(1) and 30 of the Constitution of India. Mr.
Salve submitted that Article 25 secures to every person, subject to public
order, health and morality and to the other provisions of Part-III of the
Constitution, freedom of conscience and the right freely to profess,
practise and propagate religion. The said right guarantees to every person
freedom not only to entertain such religious belief, but also to exhibit
his belief in such outward acts as he thought proper and to propagate or
disseminate his ideas for the edification of others. Mr. Salve urged that
this proposition was settled by this Court as far back as in 1954 by a
Bench of Seven-Judges in Commr., H.R.E. Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [1954 SCR 1005].
16. Mr. Salve submitted that subject to public order, morality and
health, Article 26 of the Constitution guarantees to every religious
denomination or a section thereof, the right to establish and maintain
institutions for religious and charitable purposes and to manage its own
affairs in matters of religion. Mr. Salve urged that in regard to affairs
in matters of religion, the right of management given to a religious body
is a guaranteed fundamental right which no legislation can take away. Mr.
Salve submitted that Article 30(1) of the Constitution gives religious and
linguistic minorities the right to establish and to administer educational
institutions of their choice, which was reiterated and emphasised in T.M.A.
Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], decided by a
Bench of Eleven Judges.
17. Mr. Salve submitted that the Christian Medical College, Vellore,
hereinafter referred to as "CMC Vellore", was established 113 years ago as
a one-bed clinic by one Dr. Ida Sophia Scudder, the daughter of an American
Medical Missionary. She started training Compounders (Health Assistants) in
1903 and Nurses in 1909, and was able to establish a Missionary Medical
School for women leading to the Licentiate in Medical Practice in 1918
which was upgraded to the MBBS course affiliated to the Madras University.
Admission was thrown open to men for the MBBS course in 1947. As the
college grew, from 1948 it started admitting students by an All-India
Entrance Examination, followed by an in-depth interview. By 1950, the
affiliation to the University was confirmed and the intake was increased to
60 under-graduate MBBS students in 1964, which has now increased to 100
MBBS students. To meet the needs of the local population, a large number
of Higher Speciality Courses, Post-graduate Medical Courses, Allied Health
Sciences Courses and Courses in Nursing, have also been developed over the
years.
18. Currently, there are 11 Post-graduate Medical Diploma Courses, 23
Post-graduate Medical Degree Courses and 17 Higher Specialty Courses
approved by the Medical Council of India and affiliated to the Tamil Nadu
Dr. MGR Medical University. Today, the CMC Vellore, a minority, unaided,
non-capitation fee educational institution, is run by the Petitioner
Association comprised of 53 Christian Churches and Christian Organizations
belonging to the Protestant and Orthodox traditions. The stated object of
the Petitioner Association, as mentioned in its Memorandum of Association,
Constitution and the Bye-laws is "the establishment, maintenance and
development of a Christian Medical College and Hospitals, in India, where
women and men shall receive education of the highest grade in the art and
science of medicine and of nursing, or in one or other of the related
professions, to equip them in the spirit of Christ for service in the
relief of suffering and the promotion of health".
19. Out of 100 seats available for the under-graduate MBBS Course, 84
are reserved for candidates from the Christian community and the remaining
are available for selection in the open category with reservation for
candidates belonging to the Scheduled Castes and Scheduled Tribes.
Similarly, 50% of the Post-graduate seats are reserved for Christian
candidates and the remaining 50% are available for open selection on an All-
India basis. Mr. Salve submitted that all students selected for the MBBS
course are required to sign a bond agreeing to serve for a period of two
years in areas of need, upon completion of their courses. Similarly, Post-
graduate students selected in the Christian minority category have also to
give a similar undertaking.
20. Mr. Salve submitted that the Medical Colleges and institutions run
by the Writ Petitioners charge fees which are subsidised and are even
lower than the fees charged by Government Medical Colleges. Liberal
scholarships are given by the College to those who have difficulty in
making the payments, which include boarding, lodging and University charges
(which are considerably higher). Learned counsel submitted that the
institution was established by a Christian minority doctor in response to
her religious beliefs and the command of Jesus Christ exhorting His
disciples and followers to heal the sick and has evolved an admission
process for both its undergraduate and post graduate courses in order to
ensure that the selected candidates are suitable for being trained
according to the ideology professed at Vellore. Mr. Salve urged that the
selection process is comprised of an All India Entrance Test followed by a
searching interview and special test devised in 1948. Such process has
been improved and fine-tuned over the years so that the candidates are not
only trained as health professionals, but to also serve in areas of need in
difficult circumstances.
21. It was pointed out that this system of admission resorted to by the
Petitioner has successfully reflected the ideals with which the medical
college was founded and a survey conducted in 1992 established the fact
that the majority of graduates and post-graduates, who have passed out from
the college, have been working in India for more than 10 years after their
graduation and the majority among them were working in non-metropolitan
areas of the country. This evaluation remained the same, even during
surveys conducted in 2002 and 2010, and is in striking contrast to similar
surveys carried out by other medical institutions of equal standard, where
only a small number of graduates have been working in non-metropolitan
areas.
22. Mr. Salve submitted that in 1993, an attempt was made by the
Government of Tamil Nadu to interfere with the admission process in the
institution by a letter dated 7th May, 1993, directing the Petitioner to
implement the scheme framed by this Court in the case of Unni Krishnan Vs.
State of U.P. [(1993) 1 SCC 645], insofar as the undergraduate course in
Nursing was concerned. The Petitioner-institution filed Writ Petition
No.482 of 1993 before this Court challenging the State Government's
attempts to interfere with the admission process of the institution as
being contrary to and in violation of the rights guaranteed to it under
Article 30 of the Constitution. In the pending Writ Petition, various
interim orders were passed by the Constitution Bench of this Court
permitting the institution to take resort to its own admission procedure
for the undergraduate course in the same manner in which it had been doing
in the past. The said Writ Petition was heard in 2002, along with the
T.M.A. Pai Foundation case (supra), wherein eleven questions had been
framed.
While hearing the matters, the Chief Justice formulated five issues
to encompass all the eleven questions, on the basis of which the hearing
was conducted, and the same are extracted below:
"1. Is there a fundamental right to set up educational
institutions and, if so, under which provision?
2. Does Unni Krishnan case [(1993) 4 SCC 111] require
reconsideration?
3. In case of private institutions (unaided and aided), can
there be government regulations and, if so, to what extent?
4. In order to determine the existence of a religious or
linguistic minority in relation to Article 30, what is to be the
unit - the State or the country as a whole?
5. To what extent can the rights of aided private minority
institutions to administer be regulated?"
Out of the eleven questions framed by the Bench, Questions 3(b), 4
and 5(a) are extremely relevant for deciding the questions raised in the
Writ Petition filed by the Petitioner-institution. For the sake of
reference, the said three Questions are extracted hereinbelow:
"Q3(b). To what extent can professional education be
treated as a matter coming under minorities rights under Article
30?
Q4. Whether the admission of students to minority educational
institutions, whether aided or unaided, can be regulated by the
State Government or by the University to which the institution
is affiliated?
Q5(a). Whether the minority's rights to establish and
administer educational institutions of their choice will include
the procedure and method of admission and selection of
students?"
23. Mr. Salve submitted that the answer given by the Eleven-Judge Bench
to the first Question is that Article 30(1) re-emphasises the right of
religious and linguistic minorities to establish and administer educational
institutions of their choice. The use of the words "of their choice"
indicates that even professional educational institutions would be covered
by Article 30.
24. The answer to the second Question is that, except for providing the
qualifications and minimum conditions of eligibility in the interest of
academic standards, admission of students to unaided minority educational
institutions cannot be regulated by the State or University concerned. Mr.
Salve pointed out that a note of caution was, however, introduced and it
was observed that the right to administer, not being an absolute right,
there could be regulatory measures for ensuring proper educational
standards and maintaining the excellence thereof, particularly in regard to
admissions to professional institutions. It was further held that a
minority institution does not cease to be so, when it receives grant-in-aid
and it would, therefore, be entitled to have a right to admit students
belonging to the minority group, but at the same time it would be required
to admit a reasonable number of non-minority students so that rights under
Article 30(1) were not substantially impaired and the rights of a citizen
under Article 29(2) of the Constitution were not infringed. However, the
concerned State Governments would have to notify the percentage of non-
minority students to be admitted in the institution. Amongst students to
be admitted from the minority group, inter se merit would have to be
ensured and, in the case of aided professional institutions, it could also
be submitted that in regard to the seats relating to non-minority students,
admission should normally be on the basis of the common entrance test held
by the State agency, followed by counselling wherever it exists.
25. In reply to the third Question, it was held that a minority
institution may have its own procedure and method of admission as well as
selection of students, but such a procedure would have to be fair and
transparent and the selection of students in professional and higher
educational colleges should be on the basis of merit. The procedure
selected for admission by the minority institution ought not to ignore the
merit of students for admission while exercising the right to admit
students by the colleges aforesaid, as in that event, the institution will
fail to achieve excellence. The said procedure should not amount to
maladministration.
26. Some of the issues decided in the T.M.A. Pai Foundation case came
up for clarification in the Islamic Academy of Education case (supra) and
for further interpretation in P.A. Inamdar's case (supra), before a Bench
of Seven-Judges, wherein the Petitioner-Association was duly represented.
The Hon'ble Judges reiterated the views expressed in the T.M.A. Pai
Foundation case that there cannot be any reservation in private unaided
institutions, which had the right to have their own admission process, if
the same was fair, transparent, non-exploitative and based on merit. Mr.
Salve referred to paragraph 125 of the judgment in P.A. Inamdar's case
(supra), which is relevant for our purpose, and reads as follows:
"125. As per our understanding, neither in the judgment of Pai
Foundation [(2002) 8 SCC 481] nor in the Constitution Bench
decision in Kerala Education Bill [1959 SCR 995] which was
approved by Pai Foundation, is there anything which would allow
the State to regulate or control admissions in the unaided
professional educational institutions so as to compel them to
give up a share of the available seats to the candidates chosen
by the State, as if it was filling the seats available to be
filled up at its discretion in such private institutions. This
would amount to nationalisation of seats which has been
specifically disapproved in Pai Foundation [(2002) 8 SCC 481].
Such imposition of quota of State seats or enforcing reservation
policy of the State on available seats in unaided professional
institutions are acts constituting serious encroachment on the
right and autonomy of private professional educational
institutions. Such appropriation of seats can also not be held
to be a regulatory measure in the interest of the minority
within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution of
India. Merely because the resources of the State in providing
professional education are limited, private educational
institutions, which intend to provide better professional
education, cannot be forced by the State to make admissions
available on the basis of reservation policy to less meritorious
candidates. Unaided institutions, as they are not deriving any
aid from State funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit."
27. Mr. Salve submitted that after this decision, the Petitioner
Institution continued to admit students to its various graduate and post-
graduate courses by following its own admission procedure, as it had been
doing for the last several decades. Mr. Salve submitted that the Committee
set up by the Government of Tamil Nadu has permitted the Institution to
follow its own admission procedure for undergraduate M.B.B.S. course for
the academic year 2012-2013.
28. While matters were thus poised, the Medical Council of India framed
the impugned amended Regulations, which, according to Mr. Salve, not only
violated the fundamental rights guaranteed under Articles 25, 26 and 30 of
the Constitution to minority run institutions, but if implemented, would
destroy the very objective with which the hospital had been set up in
response to Christ's mission of healing the sick. Mr. Salve submitted that
the impugned Notifications were inconsistent with the law laid down by the
Supreme Court in its various decisions dealing with the rights of unaided,
non-capitation fee minority institutions to admit students of their choice.
29. Mr. Salve submitted that right from the decision in Unni
Krishnan's case (supra), when the State Government first sought to
interfere with the admission process adopted by the Petitioner Institution,
this Court has, by virtue of different interim and final orders, held that
there could be no reservation of seats in institutions like the ones run by
the Petitioner, which are wholly unaided and have always been permitted to
admit students of their choice, in keeping with their status as minority
unaided professional institutions. It was urged that Clause 9(vi) of the
Post-Graduate Notification, which provides for reservation, is ultra vires
the provisions of Article 30(1) of the Constitution. Furthermore, when the
State Government tried to reserve 50% of the seats in the Under-graduate
courses, this Court granted a stay which continues to be operative.
30. Mr. Salve submitted that the question of reservation of seats in
minority institutions, which has been introduced by the impugned
amendments, both in respect of the Under-graduate and the Post-Graduate
courses, does violence to the rights conferred on minorities under Article
30(1) of the Constitution of India, as interpreted by this Court in various
judgments starting from 1957 till 2002, when the question was finally
decided by an Eleven-Judge Bench in the T.M.A. Pai Foundation case (supra).
Even the reservation created for NRIs in Unni Krishnan's case (supra) case
was declared to be ultra vires the Constitution of India.
31. It was urged that in a recent decision of this Court in the Indian
Medical Association case (supra), it has, inter alia, been held that the
level of regulation that the State could impose under Article 19(6) on the
freedoms enjoyed pursuant to Sub-Clause (g) of Clause (1) of Article 19 by
non-minority educational institutions, would be greater than what could be
imposed on minority institutions under Article 30(1) thereof, which
continued to maintain their minority status by admitting students mostly
belonging to the minority community to which the minority institutions
claim to belong, except for a sprinkling of non-minority students, an
expression which has been used in P.A. Inamdar's case and earlier cases as
well. Mr. Salve contended that the Petitioner Institution, from its very
inception reserved up to 85% of its seats in the Under-graduate courses and
50% of the Post-Graduate seats for Christian students exclusively. In the
remaining 15% of the seats in the Under-graduate courses, reservations have
been made for Scheduled Castes and Scheduled Tribes candidates.
32. Mr. Salve contended that the impugned Notifications and the
amendments to the MCI Regulations sought to be introduced thereby are
contrary to the judgments delivered by the Constitution Bench. Learned
counsel submitted that till the amendments were introduced, the concerned
institutions had been conducting their own All India Entrance Tests for
admission to the MBBS and Post-Graduate medical courses. Mr. Salve urged
that there has been no complaint of maladministration as far as the
institutions run by the Petitioner Association are concerned.
33. It was further submitted that all the Petitioners in this batch of
cases are either religious minority educational institutions or linguistic
mino
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