|Name||P.A Inamdar & Ors. v. State of Maharashtra|
|Citation||Appeal (Civil) 5041 of 2005|
|Area of Law||Constitution; Educational Affairs|
It is a case decided by a 2-Judge Bench of the Supreme Court, in which the dispute related to the fixation of quota in respect of unaided professional institutions and to the holding of examinations for admission into such colleges. The interpretation put by a 5-Judge Bench in the case of Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, on the 11-Judge Bench decision in the case of T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, was also in question. The 2-Judge Bench decided that the issues raised should be referred to a larger Bench for final determination having regard to the nature of the controversy involved in this case.
As an interim measure, for the academic year 2004-05, for the State of Karnataka, it was prima facie held in this case that the seats should be filled up by the institutions concerned in the ratio of 50:50 purely as a temporary measure and without prejudice to the contentions of the parties for the purpose of the final disposal.
Likewise, Interim orders were issued for certain colleges in State of Maharashtra. In this paper the analysis of the case P.A INAMDAR & ORS. V. STATE OF MAHARASTRA will be done.
The urgency to enact the First Amendment to the Constitution, even before the formation of the First Lok Sabha in 1952, was significant. The immediate object of the law-makers was to override the Supreme Court’s decision in State of Madras v. Champakam that the Constitution did not intend to protect the interests of backward classes in admissions to educational institutions.
The First Amendment thus set forth in unmistakable terms the state’s commitment to the promotion of the educational and economic interests of the SCs, the STs and other weaker sections, a directive principle enshrined in Article 46.
In the Champakam case the Supreme Court held that a citizen could not be denied admission to state-maintained or state-aided educational institutions on the grounds of religion, race, caste or language, as guaranteed by Article 29 (2). But the language of Clause 4 of Article 15 suggests that the law-makers sought to give the state a clear mandate to secure the interests of the weaker sections and backward classes in all educational institutions.
The Supreme Court’s judgment in P.A. Inamdar and Others v. State of Maharashtra and Others on August 12 threatens to undo the very basis of the First Amendment. The seven-member Bench comprising Chief Justice R.C. Lahoti and Justices Y.K. Sabharwal, D.M. Dharmadhikari, Arun Kumar, G.P. Mathur, Tarun Chatterjee and P.K. Balasubramanian, held unanimously that enforcing the reservation policy of the State on seats in unaided professional institutions constitutes a serious encroachment on the right and autonomy of these institutions. The Bench held that merely because the State’s resources in providing professional education are limited, it cannot force private educational institutions, which intend to provide better professional education, to make admissions on the basis of its reservation policy to less meritorious candidates. The judgment will be operative from the next academic year.
Facts Of The Case
- Was a landmark judgement of 11 judge bench decision given by supreme court of India in regards to setting up of educational institution along with further other matter in regard to right to education as a fundamental right.
- One of the leading academicians found flaws in the pai foundation case, and soon the supreme court was flooded with writ petition. The decisions had to be broadly discussed and dissected.
The Bench does not seem to have examined the implications of this ruling in enforcing Article 15(4). In fact, Article 15(4) is not even mentioned in the judgment. The reason for this judgment can perhaps be found in the immediate history of the case, which goes back to the verdict delivered by a Bench of 11 Judges in the T.M.A. Pai Foundation case in 2002.
The seven-member Bench appears to have considered it its duty to interpret the judgment in the T.M.A. Pai case to identify exactly the law laid down in it, and pronounce as illegal what was not specifically said in the judgment. The petitioners were managements of some unaided professional institutions who were aggrieved with the judgment of the five-member Bench in Islamic Academy of Education and Others v. State of Karnataka and Others in 2003.
In the Islamic Academy case, the Supreme Court interpreted the T.M.A. Pai judgment as having declared that unaided professional institutions are entitled to autonomy in their administration, but at the same time they should not forgo or discard the principle of merit.
Secondly, it held that in unaided non-minority professional colleges a certain percentage of seats could be reserved by the management for students who had passed the Common Entrance Test held by itself or by the state/University, while the rest of the seats might be filled up on the basis of counselling by the state agency. Thirdly, the Bench suggested that unaided professional colleges should also make provisions for students from the poorer and backward sections of society. It said the government could prescribe the percentage of seats according to local needs, and different percentages could be fixed for minority and non-minority institutions.
However, in the P.A. Inamdar case, the Bench held that nowhere in the T.M.A. Pai case judgment it found any justification for the imposing of a seat-sharing quota or reservation policy by the state on unaided private professional colleges.
The crucial paragraph in the T.M.A. Pai judgment – interpreted differently in the Islamic Academy case and the P.A. Inamdar case – is paragraph 68. The Bench in the P.A. Inamdar case interpreted this paragraph to mean that managements may adopt a policy in line with the reservation policy of the state to cater to the educational needs of the weaker and poorer sections of society, but it has to be on the basis of voluntary or consensual arrangements which can be reached between unaided private professional institutions and the state.
The Bench said the first part of the paragraph declared the law, while the second part was just an illustration or a suggestion or observation as to how the state may devise a mechanism to take care of the poor and backward sections. As this part cannot be read as law laid down by the Bench, it can be enforced only by consent or agreement or persuasion, the Bench held in the P.A. Inamdar case.
In the first part of paragraph 68 in the T.M.A. Pai judgment, the Bench said the university or the government at the time of granting recognition to a private unaided institution can require it to provide for merit-based selection, while at the same time giving the management sufficient discretion in admitting students. This, it said, could be done through various methods.
In the second part of the paragraph, the Bench suggested that, for instance, a certain percentage of the seats can be reserved for the management for the admission of students from among those who have passed the Common Entrance Test held by itself or by the state/university and have applied to the college concerned, while the rest of the seats may be filled on the basis of counselling by the state agency. This, the Bench said, would “incidentally take care of poorer and backward sections of society”. The prescription of percentage for this purpose had to be done by the government according to the local needs, it said.
It added that the government could fix different percentages for minority and non-minority institutions, and that it could apply the same principles to non-professional unaided educational institutions too.
It is clear that the Bench in the Islamic Academy case read this paragraph as a whole, while that in the P.A. Inamdar case read the two parts in isolation. It is ironical that such a minor disagreement on what a paragraph in an earlier judgment meant has resulted in the undoing of a momentous constitutional amendment aimed at achieving social justice in access to education.
The roots of this judicial aberration perhaps lie in the philosophy of the Supreme Court as it evolved in the T.M.A. Pai judgment, which considered the right to establish and manage an educational institution as a fundamental right under 19(1)(g) for the non-minorities and under Article 30 for the minorities. As a corollary, the Supreme Court examined whether reservation of seats in such institutions could be construed as a reasonable restriction under Article 19(6).
In the P.A. Inamdar case, the Bench held that “such appropriation of seats cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6)” – a bald assertion which, in the eyes of the political class, calls for suitable legislative remedies.
The Bench also drew attention to the question of NRI seats. It has admitted that by and large neither the students who get admission under the NRI category nor their parents are NRIs. In effect and reality, the Bench said, under this category, less meritorious students, but who could afford to bring more money, got admission. However, the Bench allowed a limited reservation of such seats at the discretion of the management but not exceeding 15 per cent, on the condition that only genuine NRIs got admission and that merit was not given a complete go-by.
Displaying rare unanimity, Lok Sabha members on August 17 demanded legislation to reverse the setback caused to the social justice philosophy of the Constitution by the Supreme Court judgment. Human Resource Development Minister Arjun Singh acknowledged that the verdict impinged on social rights and that the government was committed to reservation. The Supreme Court itself called for detailed, well-thought-out legislation on the subject and held that the committees envisaged for regulating the admission procedure and the fee structure would be temporary devices that would last until a law was enacted.
Other issues that were also taken into account were as follows,
To what extent can professional education be treated as a matter coming under minorities’ rights under Article 30?
A. Article 30(1) gives religious and linguistic minorities the right 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.
i-Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?
i-Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens’ rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists.
ii- Whether the minorities’ rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
ii- A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
iii-Whether the minority institutions’ right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?
iii-While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the university or the Government concerned followed by counselling, or on the basis of an entrance test conducted by the individual institutions the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society.
- All the petitions were allowed and sent before the regular benches for hearing
- Article 30 (1) was discussed in various facets elaborating the issues above mentioned.
- A general clearer than the former with directions to central government was made and sent to the regular benches.
In addition to the above stated judgements, The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non- exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g).
They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution. The suggestion made on behalf of minorities and non- minorities that the same purpose for which Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb.
Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of student community. Professional education should be made accessible on the criterion of merit and on non-exploitative terms to all eligible students on a uniform basis. Minorities or non-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and on a reasonable fee-structure.
This case holds a very important place in the history of the reservation, The suggestion made on behalf of minorities and non- minorities that the same purpose for which Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of student community. Professional education should be made accessible on the criterion of merit and on non-exploitative terms to all eligible students on a uniform basis.
Minorities or non-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and on a reasonable fee-structure. In our considered view, on the basis of judgment in Pai Foundation and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities.
Q 1) What Does Our Indian Constitution Say About The Reservation?
Ans 1) Article 15(4) says that Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Q 2) What Is The Purpose Of Article 30?
Ans 2) Article 30 (Article 23A of the Draft Constitution) secures religious and linguistic minorities the right to establish and administer educational institutions.
Q 3) What Is The Status Of The Students Residing In Other States Where They Are Not In Minority?
Ans 3) Students of the community residing in other States where they are not in minority, shall not be considered to be minority in that particular State and hence their admission would be at par with other non-minority students of that State.
Q 4) What Is Article 19(1)g?
Ans 4) Article 19(1) g says that Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Q 5) What Was The Suggestion Of Bench For The Unaided Professional College In The TMA Pai Case?
Ans 5) The Bench suggested that unaided professional colleges should also make provisions for students from the poorer and backward sections of society. It said the government could prescribe the percentage of seats according to local needs, and different percentages could be fixed for minority and non-minority institutions.