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

Bench: V.N. KHARE, S.N. VARIAVA, K.G. BALAKRISHNAN, ARIJIT PASAYAT, S.B. SINHA

Judgment text

ISLAMIC ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA AND OTHERS AUGUST 14, 2003 [V. N. KHARE, CJ. , S. N. VARIAVA, K. G. BALAKRISHNAN, ARIJIT PASAYAT AND S. B. SINHA, JJ. ] Constitution ofIndia, 1950-Artic/e 30-Right ofminority educational 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 ofa rigidfee structure by Government-Each institute has freedom to fix its own fee structure which should also generate surplus- But the surplu:; to be used only for the educational institutions and not for personal gain or any other business or enterprise-Direction to set up a Committee in each State for considering fixation offee~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 certain percentage ofseats 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 ofunaided minority professional colleges different percentage can befixed keeping in mind the need ofthe particular community apart from the local needs-Private unaided professional colleges are not entitled to admit students by evolving their own method ofadmission-The management 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 ofall colleges ofa particular type in the State-Direction to State Government to appoint a Committee to ensure fair test conducted by the Association of colleges.

Pusuant to judgment in T. M. A. Pai Foundation and Ors. v. State of 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 ISLAMIC ACADEMY OF EDUCATION. v. STATE 475 courts. Interim orders passed therein were challenged in the present petitions, 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 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 HELD: (Per V. N. Khare, CJ/for himselfand/or Variava, Balakrishnan and Pasayat, JJ. ) 1. The answers to the questions, in the majority Judgment in T. M. A. Pai case are merely a brief summation ofthe 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 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] 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 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 onlyfor the benefit/use ofthat 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. [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 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 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 amount fixed as fees. Ifany 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 oflosing its recognition/ . affiliation. [492-C-H; 493-A-B) 2. 3. An educational institution can only charge prescribed fees for one semester/year. Ifan 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 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 as those conferred on minority educational institutions by Article 30 of the ISLAMIC ACADEMY OF EDUCATION. v. STATE Constitution of India. Non-minority educational institutions do not have the 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 r' give them certain advantages. [484-G-H; 495-A] 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 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 ofseats" 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 local needs. Keeping this in mind provisions have to be made for the poorer and backward sections ofthe 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 the common entrance tests conducted by Government Agencies.

[498-B-E, G] State ofMaharashtra 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 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 ofthat community, in the State, would be paramount vis-a-vis the local needs. [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 ofanother community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language, 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 ofmerit 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 "itselfor by State/ University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. Thus the management could select 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 State. The option ofchoosing, between either ofthese tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. Ifany 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 per that merit list. Minority colleges will be entitled to fill up their quota with their own students on basis ofinter-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] 4. 5.

Itcannot be said th~t the majority judgment only permits University/ State to provide for merit based selection at the time ofgranting 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 ofgranting recognition/affiliation as well 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 be formed. The Committee shall have powers to oversee the tests to be ISLAMIC ACADEMYOF EDUCATJON v. STATE 479 conducted by the Association.

,rThis would include the power to call for the • 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 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 ofthe quota allotted to them by the State Government. Before exempting any institute or varying in percentage ofquota fixed by the State, the State Government must be heard before the Committee.

It is clarified that different percentage ofquota 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 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 Bombay, [1963] 3 SCR 837; Rev Father Proost v. State ofBihar, AIR (1969) SC 465; State ofKera/av. Very Rev Mother Provincial, (1970) 2 SCC 417 and AhmedabadSt Xaviers College Society v. State ofGujarat, (1974) 1 SCC 717, referred to.

Per Sinha, J:( Partly dissenting) 1. 1. A judgment, it is trite, is not to be read as a statute. The ratio decidendi ofa judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi ofa 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 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; Rajeswar Prasad Mishra v. The State ofWest Bengal and Anr. AIR 1965 SC i- 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 judgment, wherefor, it would be essential to read the other . paragraphs ofthe 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 ofIndia and Ors. , [19921 Supp. 1 sec 272~ relied on. . 1. 3. A decision is an authority for what it decides and not what can be logically deduced therefrom. [554-E) Union ofIndia 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 regulations both in terms of Article 19(l)(g) and Article 30 of the Constitution ofIndia. The width ofthe rights and limitations thereofofunaided institutions whether run by a majority or a minority must conform to the maintenance ofexcellence. 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( 2. 3. Article 30(1) ofthe 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 ofGujarat, (1963) 3 SCR 837; State ofKera/av. Mother Provincial, (1970) 2 SCC 2079; All Saints High School v. Government ISLAMIC ACADEMY OF EDUCATION. v. STATE 481 ofAndhra Pradesh, [1980) 2 SCC 478; Kera/a Education Bill, AIR (1958) SC 956; St. X piied in~teaci 'orcie jure eQ'U'aiiiy as every kirtti orciiscriffiiiiatioii iffay not be vioiative ·or tite equality ciause. [562-F':. ci Pradeep jain v. Union ofIndia, f1984i j s·cc 6S4, refei+e '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'inefitthey should opt for the Cofomon Entrance Testbe'ii:i iiy'. the State.

silclt ac·o"t1rie; 1rresor'"ted to, would not only be h"eiprui roraetermining the ;fr{ter se merit between thesfode'ilts/caildidates but also woY1ld·be·sufflCient to 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 Ofsociety may be fixed on the basis ofthe entrance tes·t lie1CI by the co'Dceriieit '. State'Government·o·r the unh. -ersffy. Ecoifomic 0 ci°i! ;ability7ifa1rieritcir'iou's·~tiidentsh"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'ppropriatestiituto·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 mfrit ·as aiso :tile'fafr Mid 'trans"pareiit :nianlie"r in whkh such eYaininations ISLAMIC ACADEMY OF EDUCATION. v. STATE 485 can be conducted. Such a power exists under the UGC Act, MCI Act and AICTE 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 ofeducation at no cost shall be given a go by. Any institution ifit thinks proper and expedient, may file an application for grant ofexemption so as to enable it to hold its own examination. (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 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 regard to the need of the State. (552-B-D] State ofMaharashtra 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 ofstudents, mode of holding examinations at the time ofgrant 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 ofchange owing to passage of time. Furthermore, the Parliament and the State Legislatures are not denu to maintain uniformity of standard, the right of selection of candidates for any professional course cannot be left to the discretion of any inoividual management. Efforts must be made to find out one single standard for all the institutions. Thirdly, to ensure high standard of education and for that purpose to ensure admission to the most eligible candidates, requiring merit in a poor country like ours, the tuition and other fees should be within the reach of common people.

So far as minority institutions are concerned, merit criteria would have to be judged like a pyramid. At the kindergarten, primary, secondary levels, minorities may have 100% quota. At this level the merit may not have much ISLAMIC ACADEMY OF EDUCATION. "· STATE [V. N. KHARE, CJ] 569 relevance at all but at the level of higher education and in particular professional education and post graduate level education, merit indisputably should be a relevant criteria. At the post-graduation level, where there may be a few seats, the minority institutions may not have much say in the matter. ·" Services of doctors, engineers and other professionals coming out from the institutions of professional excellence must be made available to the entire country and not to any particular class or group of people. All citizens including the minorities have also a fundamental duty in this behalf.

HUMAN RIGHTS ASPECTS OF SELECTION ON THE BASIS OF MERIT: This aspect of the matter may also be considered from Human Rights angle. Rights of minorities, on the one hand, and rights of persons to have higher education and right of development should be so construed so as to enable the Court to give effect thereto. The Universal Declaration ofHuman Rights, 1948 provides for 27 rights. Right of Education is also one of the human rights. Article 26 reads thus: "(I) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. " (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.

It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children. " (Emphasis applied) Article 3 of Convention Against Discrimination in Education (1960) reads thus: "Article 3 undertakes "to ensure, by legislation, where necessary, that there is no discrimination in the admission of pupils to educational institutions; not to allow any difference of treatment by the public authorities between nationals, except on the basis of merit or need, in the matter of school fees and the grant of scholarships to give foreign nationals resident within their territory the same access to education as that given to their own nationals. " Apart from the aforementioned rights, Right to Development is also a human right. "Development" connotes an ongoing process.

An economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allows individuals to lead a life with dignity with a view to participate in the Governmental process so as to enable them to preserve their identity and culture. We may refer to the UN Declaration on the Right to Development, 1986. The Declaration describes development as a comprehensive economic, social, cultural and political process, which aims at constant improvement of well being of people and of individuals on the basis of their active, free and meaningful participation in the process.

In the UNESCO Convention against Discrimination in Education, the States parties agree (Article 5[c]) that "it is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language," and set out the circumstances in which this right may be exercised. The European Convention on Human Rights contains a provision (Article 14) in which "association with a national minority" is listed among a series of grounds upon which discrimination is prohibited. The International Covenant on Civii and Political Rights, adopted by the UN General Assembly in 1966, includes an article on the rights of persons belonging to minorities which reads: "Article 27.

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. " Among the decisions of principal organs of the United Nations which have dealt with the question of-special protective measures for ethnic, religious, or linguistic groups are three resolutions of the General Assembly: (I) on the future government of Palestine, (2) on the question of the disposal of the ISLAMIC ACADEMY OF EDUCATION. v. STATE [V. N. KHARE, CJ. ] 571 former Italian colonies and (3) on the question of Eritrea.

In addition, the Statue of the City of Jerusalem, approved by the Trusteeship Council1 on 4 April 1950, provides special protective measures for ethnic, religious, or linguistic groups in articles dealing with human rights and fundamental freedoms, the legislative council, the judicial system, official and working languages, the educational system and cultural and benevolent institutions, and broadcasting and television. From the texts of the instruments and decisions mentioned above, it may be inferred that the term "minority" is applied internationally to two . distinct categories of persons: (a) minorities whose members desire equality with dominant groups in the sole sense of non-discrimination, and (b) those whose members desire equality with dominant groups in the sense of nondiscrimination and the recognition of certain special rights and the rendering of certain positive services.

The kind of "minority rights" that they feel they are entitled to claim iftheir equality within the State is to be real includes one or more of the following: (a) provision of adequate primary and secondary education for the minority in its own language and its cultural traditions; (b) provision for maintenance of the culture of the minority through the establishment and operation of schools, libraries, museums, media of information, and other cultural and educational institutions; (c) provision of adequate facilities to the minority for the use of its language, either orally or in writing, in the legislature, before the courts, and in administration, and the granting of the right to use that language in private intercourse; (d) provision for respect of the family law and personal status of the minority and their religious practices and interests; and (e) provision of a certain degree of autonomy. Several areas are sought to be secured wherefor the struggle continues.

The gap between the developed and the developing countries is a yawning one. Whereas there has been a rapid economic growth in a few countries bringing millions of people out of poverty, narrowing the gap between haves and have-nots, a large number of countries have seen the gap grow and poverty increase. Development and the eradication of poverty vis-a-vis human rights must be seen in that perspective. The right to establish professional colleges both by minorities and nonminorities has been found in Article l 9(1)(g) as also Article 30 of the Constitution of India. These rights vis-a-vis restrictions and limitations thereupon should be construed not only from economic point of view but also having regard to the international treaties, declarations and conventions on Human Rights. The right of a minority is a human right so also the righ. t of development.

Thus, subject to reasonable restrictions, any unaided institution imparting professional courses may although exercise greater autonomy in the matter ofmanagement and determination of the fee structure, it will have a limited right so far as the right to admit students is concerned. T. M. A. Pai Foundation says that merit shall be the criteria. Right ofdevelopment finds place in WTO and GATT. It takes into consideration globalisation and opening up ofeconomy. Excellence in professional education must be viewed from the economic interest in the country. In order to compete with the other developed countries, GDP of India should be around 15% instead of present rate of 5%. This can be achieved only by producing students of excellence, which can be achieved only by encouraging institutions ofexcellence imparting professional education to those who are meritorious.

Giving encouragement to the students, having better merit will, thus, have a direct nexus with the economic and consequently the national interests of the country. The right ofdevelopment 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 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 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 ofthe minority institutions to admit a student may be less than in the case of non-professional course.

"Proper education", Nani Palkhiwala said, "should lead to civilization. " Recently, in Kapila Hingorani v. State ofBihar, 1T (2003) 5 SC 1, a Bench of this Court noticed the following observations of Field, J. in Munn v. Illinois, (1877) 94 US 113 as to what i:; "Life", which was in the following terms: ". Something more than mere animal existence and the inhibition against the deprivation of life e. xtends to all those limits and faculties by ISLAMICACADEMYOF EDUCATION. v. STATE (V. N. KHARE, CJ] 573 which life is enjoyed. " Therein it was noticed : .. ~·. "The right to development in the developing countries is itself a human right. The same has been made a part of WTO and GATT. In 'The World Trade Organization, Law, Practice, and Policy (Oxford) by Matsushita Schoenbaum and Mauroidis at page 389, it is stated: "The United Nations has proclaimed the existence of a human right to development.

This right refers not only to economic growth but also to human welfare, including health, education, employment, social security, and a wide-range of other human needs. This human · right to development is vaguely defined as a so-called third-generation human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of states and intergovernmental organizations to work within the scope of their authority to combat poverty and misery in disadvantaged countries. " [Emphasis applied] Poverty to a great extent can be combated through education. Having -·.. regard to globalisation and opening up of the market, the State expects various medical colleges and educational institutions and universities to move in. Under WTO and GATT human development has taken its firm root. A decent life to the persons living in the society in general is perceived.

In the said scenario this Court in Kapi/a Hingorani (supra) observed: "The States of India are welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity. " To achieve this, the promotion of human development and the preservation and protection of human rights proceed from a common platform. Both reflect the commitment ofthe people to promote freedom, the well-being and dignity of individuals in society. Human development as a human right has a direct nexus with the increase in capabilities of human beings as also the range of things they can do. Human development is eventually in the interest of society and on a larger canvas, it is in the national interest also.

As a human right, human development finds its echo in several areas as for example in excellence in professional education, be it the study of medicine, engineering or law. Progress and development in these fields will not only give . a boost to the economy of the country but also result in better living conditions for the people of India. In T. M. A. Pai Foundation's case (supra), this Court called upon the private unaided institutions including the minority educational institutions to fulfill the hopes and aspirations of the meritorious students and in particular the meritorious socially and educationally backward students. Higher education as contained in Article 26 must be based on merit. The competing human . C rights of the minorities vis-a-vis any other citizen, thus, requires a delicate balance.

Furthermore Article 5lAG) enjoins a duty ofevery citizen of India inter alia to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of excellence and achievement. In T. M. A Poi Foundation, (supra), this Court in no uncertain terms said that merit would be the first criteria for imparting professional education. It must be given full effect with the aid of these additional reasons. RECOGNITION/AFFILIATION: Although the minorities have a right to establish institutions of their own choice, they admittedly do not have any right of recognition or affiliation for the said purpose. They must fulfill the requirements of law as also other conditions which may reasonably be fixed by the appropriate Government or the university. In T. M. A. Pai Foundation, (supra) it was laid down that certain conditions can be imposed as regards admission of students, mode ofholding examinations at the time ofgrant of recognition.

A question has been raised by Mr. Nariman that once recognition has been granted, no further restriction can be imposed. We do not agree. There exist some institutions in this country which are more than a century old. 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 any law iri imposing any fresh condition despite the need of change owing to passage of time. Furthermore, the Parliament or the State Legislatures are not denuded Iii ISLAMIC ACADEMY OF EDUCATION. v. STATE [V. N. KHARE, CJ. ) 575 of its power having regard to restrictions that may satisfy the test of clause (6) of Article 19 ofthe Constitution of India or regulations in tenns of Article 30 depending upon the national interest/public interest and other relevant factors.

We, however, wish to emphasise that 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. AN EPILOGUE: H is unfortunate that a Constitution Bench had to be constituted for interpreting a I I-Judge Bench judgment. Probably in judicial history of India, this has been done for the first time. It is equally unfortunate that all of us cannot agree on all the points, despite the fact that the matter involves construction of a judgment. In the name of interpretation we have to some extent, however little it may be re-written the judgment. We have laid down new laws and issued directions purported to be in terms of Article 142 of the Constitution. We have interpreted T. M. A. Pai; but we have also made . endeavours to give effect to it. In some areas it was possible; in some other it was not.

We have refrained ourselves from expressing any opinion at this stage as to whether grant of settlement of Government land at a throw-away price or allowing the private institutions to avail the facilities of Government hospitals would amount to grant of aid or not. We have also not expressed any opinion on cross-subsidy. 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 details of vexing problems on the basis of tile 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 which can be sorted at the ground level by holding consultations should not be allowed to be brought to the Court. It is, in that view of the matter, we have thought it fit to direct setting up of committees for the aforementioned purposes. ( ;. In the present constitutional set up having regard to Entry 66, List I of the Constitution of India, the legislative power of the State may be very limited; the extent whereof may have to be detennined in appropriate cases. But the stake of the State in such matters is also not minimal. The State has to evolve its own policies generating the source of employment. We have come across several schemes framed by the States in terms whereof incentives are being given to the private industries for generating employment or reduction in taxes is being proposed ifgraduates are employed.

The respective States, therefore, must apply its mind while granting essentiality certificate inasmuch as the human resource development problems will have to be faced by it. In evolving a sound policy decision in this behalf, the statutory bodies shall also have to lend their ears to the respective State Governments while granting permission for establishment of the professional educational institutions. The Human Resource Development Ministry of the Central Government should also play its role. The I. As. for clarification are, thus, disposed of. The writ petitions may now be placed before appropriate Benches for disposal. In the facts and circumstances of this case, there shall be no order as to costs. K. K. T. Referred to the Larger Bench. i- \