Supreme Court of India
INDIAN MEDICAL ASSOCIATIONversusUNION OF INDIA & ORS.
- Citation
- 2011 INSC 388
- Decided
- 12 May 2011
- Disposal
- Disposed off
- Bench
- B SUDERSHAN REDDY
Holding
The Supreme Court held that ACMS, being a private unaided non‑minority professional college, must obey the Delhi Professional Colleges or Institutions Act, 2007 and that the government’s exemption allowing 100 % seats for army wards is ultra‑violes and unconstitutional, while clause 5 of Article 15 does not breach the basic structure.
Summary
The Army College of Medical Sciences (ACMS), run by the Army Welfare Education Society, admitted only wards of army personnel based on a Delhi Government exemption, ignoring merit and statutory reservations. The Indian Medical Association and several candidates challenged this policy, arguing that ACMS is a private unaided non‑minority professional institution and must comply with the Delhi Professional Colleges or Institutions Act, 2007, which mandates merit‑based admissions and reservations for scheduled castes, scheduled tribes and other backward classes. The Supreme Court held that ACMS is not an instrumentality of the State, that the exemption allowing 100% seats for army wards is ultra‑violes and unconstitutional, and that the Delhi Act and its reservation provisions are valid. It also ruled that clause 5 of Article 15 does not violate the basic structure of the Constitution. Consequently, the Court set aside the High Court judgment, directed ACMS to admit the petitioners on merit (creating super‑numerary seats if necessary), and upheld the constitutionality of the Delhi Act and Article 15(5).
Issues considered
- Whether ACMS is an instrumentality of the State or an aided institution.
- Whether the exemptions granted by the Delhi Government to ACMS are valid under Section 12 of the Delhi Professional Colleges or Institutions Act, 2007.
- Whether ACMS can admit only wards of Army personnel to seats not covered by statutory reservations, disregarding the merit of other candidates.
- Whether clause 5 of Article 15 of the Constitution violates the basic structure doctrine.
- Whether the Delhi Professional Colleges or Institutions Act, 2007 is constitutionally valid.
Legislation cited
- Constitution of Indias. Article 12, s. Article 15(5), s. Article 162, s. Article 19(6)
- Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non‑Exploitative Fee and Other Measures to Ensure Equity and Excellence) Act, 2007s. 12(1), s. 12(2), s. 14, s. 18
- Guru Gobind Singh Indraprastha University Act, 1998s. 6
Subjects
reservationprivate unaided professional collegeArticle 15(5)basic structure doctrineDelhi Professional Colleges Act 2007merit‑based admissionstate aidinstrumentality of Stateequalityhigher education
Judgment
[2011] 6 S.C.R. 599
INDIAN MEDICAL ASSOCIATION A
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 8170 OF 2009)
MAY 12, 2011
B
[B.SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Constitution of India, 1950:
Article 12 - 'State' - Army WelfareEducation Society
c
(AWES) and Army College of Medical Sciences (ACMS) -
HELD: High Court has held that AWES and ACMS were
neither instrumentalities of State nor could ACMS be held to
be an aided educational institution - Such determinations D
always present issues of fact and of law - The Court is
disinclined to over-rule the findings of the High Court in this
regard.
Article 15(5) read with Arlicle 162 - Admission to MBBS
course - Reservation for Scheduled Castes, Scheduled E
Tribes and socially and educationally backward classes of
citizens - Exemption granted to ACMS by Delhi Government
- HELD: The Notification dated 14-08-2008 issued by the
Government of National Capital Territory of Delhi permitting
the ACMS to allocate hundred percent seats in the said F
college for admission to the wards of Army personnel is ultra
vires the provisions of Delhi Act 80 of 2007 and also
unconstitutional and, as such, is set aside - The power under
Article 162 can not be claimed to set at nought a declared,
specified and mandated policy enacted by the legislature - G
Delhi Act 80 of 2007, and s.12, including both sub-s. (1) and
(2) are clearly applicable, with respect to admission of
students to ACMS - The admission procedures devised by
Army College of Medical Sciences for admitting the students
599 H
600 SUPREME COURT REPORTS [2011] 6 S.C.R.
A in the first year MBBS course from a pre-defined source,
caNed out by itself and its parent society, are illegal and ultra
vires the provisions of the Delhi Act 80 of 2007 - Respondents
directed to admit the writ petitioners into the First Year of
MBBS Course in ACMS, in the ensuing academic year,
B notwithstanding the rank secured by them in the GET, by
creating supernumerary seats if the writ petitioners still so
desire, for they have been deprived of their legitimate right
of admission to the course, for no fault of theirs - Delhi
Professional Colleges or Institutions (Prohibition of Capitation
c Fee, Regulation of Admission, Fixation of Non-Exploitative
Fee and Other Measures to Ensure Equity and Excellence)
Act, 2007 - s. 12 - Doctrine of occupied field.
Article 15(5) and 19(6) - Unaided non-minority
educational institution - HELD: In view of Clause (5) of Article
D 15 of the Constitution, the unaided non-minority educational
institutions would have to comply with the State mandated
reservations, selecting students within the specified
reservation categories on the basis of inter-se merit - With
respect to the remaining seats, the state insist that non-
E minority private unaided institutions select the most
meritorious students, as determined by the marks secured in
the qualifying test - Both minority and non-minority unaided
institutions have the right to admit students who have secured
higher marks in the entrance test, and not an equivalence
F between minority and non-minority institutions to engraft their
own "sources" or "classes" of students from within the general
pool - Non-minority private unaided professional colleges do
not have the right to choose their own "source" from within the
general pool - All of the permissible restrictions and
G regulations under Clause (6) of Article 19 that non-minority
institutions would be subject to, would also be applicable with
respect to ACMS - It may indeed be the case that army
personnel, particularly, those at the lower end of the hierarchy
in the army, and their families, may be suffering from great
H hardships - It would indeed be, and ought to be a matter of
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 601
& ORS.
considerable national distress if persons who have agreed to A
lay down their lilies, for the sake of national security, are not
extended an empathetic understanding of their needs and
aspirations - If any special provisions need to be made to
protect the wards of Army personnel, this may possibly be
done by the State, by laws protected by Clause (5) of Article B
15 - The private society, of former and current army
personnel by themselves cannot unilaterally choose to do the
same.
Article 15(5), 14 and 38 read with Articles 32 and 226 -
Reservation policy of State - Judicial review of - HELO: C
provisions of new clause (5) of Article 15 do not purport to take
away the power of judicial review, or even access to courts
through Articles 32 or 226.
Article 15(5) - HELD: Clause (5) of Article 15 does not D
violate the basic structure of the Constitution - Given the
absolute necessity of achieving the egalitarian and social
justice goals that are implied by provisions of clause (5) of
Article 15, and the urgency of such a requirement, Article
15(5) is not a violation of the basic structure, but in fact E
strengthen the basic structure of our constitution -
Constitutional law - Theory of basic structure.
Education/Educational Institutions:
Higher education - Participation of private sector - F
HELD: Participation of the private sector to function in the field
of higher education, to supplement the role of the State in the
field which has been recognized even in TMA Pai could only
have existed if the State had the power to devise policies
based on circumstances to promote general welfare of the G
country, and the larger public interest - The same cannot be
taken to mean that a constitutional amendment has occurred,
·in a manner that fundamental alteration has occuffed in the
. basic structure itself, whereby the State is now denuded of its
obligations to pursue social justice and egalitarian ideals, H
602 SUPREME COURT REPORTS [2011J 6 S.C.R.
A inscribed as an essential part of our constitutional identity, in
those areas which the State feels that even resources in the
private sector would need to be used to achieve those goals
- Clause (5) of Article 15 strengthens the social fabric in which
the Constitutional vision, goals and values could be better
B achieved and served.
DELHI PROFESSIONAL COLLEGES OR
INSTITUTIONS (PROHIBITION OF CAPITATION FEE,
REGULATION OF ADMISSION, FIXATION OF NON-
EXPLOITATIVE FEE AND OTHER MEASURES TO
C ENSURE EQUITY AND EXCELLENCE) ACT, 2007:
s. 12 - Interpretation of - HELD: The provisions of the
Act do not suffer from any constitutional infirmities and
constitutional validity of the same is upheld.
D
Interpretation of Statutes:
Unrepeated sections of a previous, statute - If in conflict
with the provisions of the later statute - Relevance and
interpretation of - HELD: In the instant case, the High Court
E was right in holding that Ordinance 30 of GGSIU would be
inapplicable in the case on account of enactment of Delhi Act
80 of 2007 - However, the expression used by the High Court
that Ordinance 30 has "lost its relevance" to the extent that it
may suggest a loss of general relevance, is not correct -
F Reservation Policy for Self-Financing Private Institutions
Affiliated with the Guru Govind Singh lndraprastha University,
2006 (Ordinance 30) - Delhi Professional Colleges or
Institutions (Prohibition of Capitation Fee, Regulation of
Admission, Fixation of Non-Exploitative Fee and Other
G Measures to Ensure Equity and Excellence) Act, 2007- s.12.
Army College of Medical Sciences (ACMS), managed
and run by Army Welfare Education Society (AWES),
located in the National Capital Territory of Delhi (NCT of
H Delhi) and affiliated with the Guru Gobind Singh
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 603
& ORS.
lndraprastha University (GGSIU), was granted certain A
exemptions by the Government of NCT of Delhi from
operation of the provisions of the Delhi Professional
Colleges or Institutions (Prohibition of Capitation Fee,
Regulation of Admission, Fixation of Non-Exploitative Fee
and Other Measures to Ensure Equity and Excellence) B
Act, 2007 (Delhi Act 80 of 2007) with respect to allocations
as between Delhi and non-Delhi students, reservations
as mandated in sub-s. (2) of s.12 of Delhi Act 80 of 2007,
and the requirement that all admissions in such reserved
categories and with respect to remaining seats be based c
on inter-se merit as determined by marks secured in
common entrance test; and allowing ACMS to admit only
wards of army personnel ( both serving and former) in
accordance with ACMS's admission policy. Writ petitions
were filed by the Indian Medical Association and the 0
candidates who otherwise would be eligible to be
considered for admission to ACMS, challenging the
admission policy of ACMS. The Single Judge of the High
Court held that 79% of the seats could be filled by wards
of Army personnel and the remaining 21 % by students
belonging to the general category. The legislatively E
mandated allotment ·of seats for various reserved
categories including Scheduled Castes and Scheduled
Tribes was ignored. The Division Bench of the High Court
upheld the admission policy of the ACMS.
F
In the instant appeals and the writ petitions, the
contention of the parties boiled down to the questions:
(i) "Is ACMS an instrumentality of the State or an aided
institution?"; (ii) Whether the exemptions granted to
ACMS by the Delhi Government were valid? and (iii) G
Whether ACMS can admit only wards of Army personnel
to the seats not covered by reservations mandated by
Delhi Act 80 of 2007, without any regard to the merit of
other Delhi or non-Delhi students who may have secured
higher marks in common entrance test?" H
604 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Disposing of the matters, the Court
HELD: 1.1. At both stages of proceedings in the High
Court the conclusion reached was that the respondents
were neither instrumentalities of State nor could ACMS
B be held to be an aided educational institution. Such
determinations always present issues of fact and of law.
This Court is disinclined to over-rule the findings of the
High Court in this regard. [Para 32) [647-D-E]
1.2. The Division Bench of the High Court was
C correct in holding that Ordinance 30 of GGSIU, entitled
Reservation Policy for Self-Financing Private Institutions
Affiliated with the Guru Govind Singh lndraprastha
University, 2006 (Ordinance 30), making special
provisions for advancement of the weaker sections of the
D society and in particular of persons belonging to
Scheduled Castes and Scheduled Tribes, would be
inapplicable in the case on account of enactment of Delhi
Act 80 of 2007. This is so, because Delhi Act 80 of 2007
is a later enactment, much more general, containing a
E complete code covering the entire terrain of admissions
of students to professional unaided non-minority
institutions affiliated to all universities in NCT of Delhi,
including GGSIU, with specific provisions therein
regarding allocation of seats between Delhi and non-
F Delhi students, and reservations applicable in terms of
those students falling within constitutionally permissible
classes .. However, the expression used by the Division
Bench, that Ordinance 30 has "lost its relevance" to the
extent that it may suggest a loss of general relevance is
G not correct. Considerable care ought to be exercised in
delineating the applicability of unrepealed sections of a
previous statute, even if they conflict with the provisions
of a later statute with respect to some specific terrain of
activities. After all, Ordinance 30 of GGSIU may be
H applicable with respect to many other situations, not
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 605
& ORS.
involving the terrain covered by Delhi Act 80 of 2007. A
[para 33] [647-G-H; 648-A-C]
Municipal Council, Palai v. T.J. Joseph (1964) 2 SCR
87=1963 AIR 1561 - relied on.
2.1. The Notification dated 14-08-2008 issued by the B
Government of National Capital Territory of Delhi
permitting the ACMS to allocate hundred percent seats
in the said college for admission to the wards of Army
personnel is ultra vires the provisions of Delhi Act 80 of
2007 and also unconstitutional. [para 148] [648-C-D] C
2.2. At no stage of the proceedings either before the
High Court or in this court, have the respondents
challenged the constitutional validity of Delhi Act 80 of
2007, and specifically the allocations and reservations as 0
mandated by s.12 therein. Delhi Act 80 of 2007 or any
provisions thereof do not suffer from any constitutional
infirmities. The validity of the Delhi Act 80 of 2007, and its
provisions, are accordingly upheld. [Para 29 and 148]
[742-E-F; 645-B-D]
E
2.3. Both the title and the Preamble of Delhi Act 80
of 2007 specifically state that it was an Act to ensure
equity for Scheduled Castes, Scheduled Tribes and other
weaker segments of the population. Consequently, the
enabling provisions clause (5) of Article 15 with respect F
to making "special provisions" in regard to admission of
Scheduled Castes, Scheduled Tribes, and socially and
educationally backward classes to private unaided non-
m i nority educational institutions would extend a
protective umbrella with regard to allocations and G
reservations in s. 12 of Delhi Act 80 of 2007. Provisions
of the said Act with respect to reservations would have
to apply with the full force that they were intended to be.
[para 29] [645-C-E]
H
606 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 2.4. It is to be noted that Delhi Act 80 of 2007
specifically mandates that all admissions to ACMS would
have to be made in accordance with merit of students,
based on marks secured in the common entrance test.
With respect to those students covered by various
s categories such as Scheduled Castes, Scheduled Tribes
and other constitutionally permissible classes, as
delineated in sub-s.(2) of s.12, and as applicable with
respect to categories described in sub-s.(1) of s.12, the
rule of inter-se merit, based on marks secured in common
c entrance test by students falling into each category, would
apply. That would also mean, then, that with respect to
seats not covered by provisions of sub-s. (2) of s.12, they
would have to be filled in accordance with rule of merit
based on marks secured by general category of students
not covered by sub-s. (2) of s.12. [para 30) [645-G-H; 646-
0
A-C]
2.5. A reading s.12 of Delhi Act of 2007 synoptically,
makes it clear that sub-s. (2) of s.12 pervades the entire
space of how seats are to be allocated. In fact, the
E preamble to the Act, states that it is being enacted to
provide for "allotment" of seats to "Scheduled Castes,
Scheduled Tribes ........ and other measures to ensure equity
and excellence in professional education in the National
Capital Territory of Delhi" Consequently, it must be read
F that sub-s. (2) of s.12 is one of the primary sections of the
Act and that it would act upon the provisions of sub-s.
(1) of s.12. Sub-s. (2) of s.12 provides that with respect
to seats in sub-s. (1) of s.12, an institution shall reserve
as provided for in clauses (a), (b) and (c) of sub-s. (2) of
G s.12 that follow. Clearly, the phrase "[l]n the seats
mentioned in sub-s. (1)" at the beginning of sub-s. (2) of
s.12 reveals the intent of the legislature that the specific
reservations provided for Scheduled Castes and
Scheduled Tribes and other provisions that may be made
H with respect to other weaker segments and other
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 607
& ORS.
permissible categories of classes, shall be applied with A
respect to each and every category of seats identified in
sub-s. (1) of s.12. Looking at sub-s. (2) of s.12 closely, this
would mean that not only are reservation of seats, for
instance with respect to Scheduled Castes and
Scheduled Tribes, to be made with respect to Delhi B
students, non-Delhi students, and also with respect to all
students admitted under the management quota. [para 37)
[650-B-F]
2.6. Furthermore, by permitting ACMS to admit only
students of wards of army personnel, notwithstanding C
the fact that there could be others who have taken the
common entrance test, and have secured more marks
than the wards of Army personnel, the exemptions
granted by Delhi Government also set at naught the
legislative intent to ensure excellence by mandating that D
all admissions be made on the basis of inter-se merit
within each of the categories of students. The general
category would comprise of all students who have taken
the common entrance test, and otherwise satisfy the
conditions of sub-s. (1) of s.12 of the Delhi Act 80 of 2007, E
after the seats pursuant to sub-s. (2) of s.12 are reserved
i.e., allocated for the described constitutionally
permissible categories therein. The said Act clearly
specifies that its objective is to achieve excellence, and
one of the methods specified to achieve the same is of F
admitting students on the basis of inter-se merit in each
of the categories specified in s.12. The grant of
permission to ACMS to admit students who may have
scored lower marks than others, both within the general
category and also in the reserved categories, results in G
defeat of the aims, objects and purposes of the Act, and
the entire fabric and scheme of the Act gets frustrated.
There is no power conferred on Government of Delhi to
grant any exemption in favour Qf any institution from tt~e
H
•
608 SUPREME COURT REPORTS (20111 6 S.C.R.
A operation of any of the provisions of the Act. [para 39]
[651-D-H; 652-A-B]
2.7. The claim of the Government of Delhi in its
affidavit that its powers to provide such exemptions also
flow from Article 162 of the Constitution can not be
8
accepted. Article 162 states, "[S]ubject to the provisions
of this Constitution the executive power of a State shall
extend to the matters to which the Legislature of the State
has power to make law." The power under Article 162 can
not be claimed to set at nought a declared, specified and
C mandated policy legislated by the legislature. Further, the
cited portion of Article 162 has been interpreted by this
Court to mean that the State Executive has the power to
make any regulation or order which shall have the effect
of law so long as it does not contravene any legislation
D by the State Legislature already covering the field. In the
instant case, the legislature of NCT of Delhi has
specifically set out a clear policy with respect to
reservations for Scheduled Castes and Scheduled Tribes
and other weaker sections of the population. The duty of
E the executive is to implement that policy, and not to
abrogate it. [para 40] [652-D-H; 653-A-B]
Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR
225= AIR 1955 SC 549; and State of A.P. v. Lavu (1971) 1
F SCC 607 - relied on.
2.8. The correct interpretation ot sub-s. (b) of s.12(1)
is as follows: first part - "Eighty five percent of the total
seats except the management seats, shall be allocated for
Delhi students" followed by the conjunction "and" and
G then the second part - "the remaining fifteen percent
seats for outside Delhi students or such other allocation
as the Government may by notification in Official Gazette
direct." Therefore, it can only mean that the powers of
Delhi Government are limited to the extent of varying the
H percentage of seats reserved for non-Delhi students, up
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 609
& ORS.
to a maximum of 15%. Further, this is the legislature of A
Delhi, that is legislating for the denizens of NCT of Delhi,
with a primary responsibility for their welfare. Further, in
as much as clause (a) of sub-s. (2) of s.12 provides that
17% of seats be reserved for Scheduled Castes, 1% of
seats be reserved for Scheduled Tribes, and an B
unspecified percentage of seats be reserved for other
Backward classes who are also denizens of Delhi, the
legislature of Delhi would have taken into account the
needs of Scheduled Castes and Scheduled Tribes in
Delhi. The discretion to vary the 15% reserved for non- C
Delhi citizens was in all likelihood to enable the
Government of Delhi to increase the percentage of seats
allocated to denizens of Delhi, in the event a sizeable
number of other backward classes of students also need
to be accommodated in the professional colleges of
0
Delhi. By fixing a number, 15%, for non-Delhi students,
·the legislature intended to set a maximal limit on the
number of non-Delhi students who could be admitted,
and specified the percentage of seats that could be
allocated to Scheduled Castes, Scheduled Tribes and
other weaker sections which could be reduced in the E
event that Government of Delhi needed to accommodate
the special exigencies of the needs of denizens of Delhi,
including but not limited to its backward classes. [para
43) (654-B-D; 655-A·B]
F
2.9. Thus, the exemption granted by the Government
of Delhi allowing ACMS to fill 100% of its seats by wards
of army personnel violates the basic principles of
democratic governance, of the constitutional requirement
that executive implement the specific and mandatory G
policy legislated by the legislature, and violates the
provisions of Delhi Act 80 of 2007. In fact, the actions of
the Government of Delhi, are wholly arbitrary, without any
basis in law, and ultra vires. s.14 of the said Act specifies
that any admission made in contravention of the H
610 SUPREME COURT REPORTS [2011] 6 S.C.R.
A provisions of the Act or the rules made thereunder, shall
be void, and further s.18 provides that those making
admissions in contravention of the provisions of Delhi Act
80 of 2007 may be punished by imprisonment up to three
years or a fine up to Rupees one Crore or both. Such
B provisions clearly demonstrate the intent of the legislature
that its policy, as specified in the Act, and the purposes
of the Act, not be derogated from in any manner. The said
provisions of the Act are mandatory in nature. The
Government of Delhi has clearly acted on the basis of a
c misplaced belief of its powers, under the Act, a
misunderstanding of the statutory language of the Act,
and its relevant provisions, and also in complete
contravention of constitutional principles. [para 45) [656-
E-H; 657-A-B]
D 2.10. Therefore, it is held Delhi Act 80 of 2007, and
s.12, including both sub-s. (1) and (2) are clearly
applicable, with respect to admission of students to
ACMS. [para 46) [657-C)
E 3.1. The admission procedures devised by Army
College of Medical Sciences for admitting the students in
the first year MBBS course from a pre-defined source,
carved out by itself and its parent society, are illegal and
ultra vires the provisions of the Delhi Act 80 of 2007. [para
F 148) [657-F]
3.2. In P.A. lnamdar", this Court's emphasis was on
the right of private educational institutions to admit
students on the basis of "merit" as determined by marks
secured in an entrance test. To this extent, the quoted
G paragraphs would stand for the proposition that both
minority and non-minority unaided institutions have the
right to admit students who have secured higher marks
in the entrance test, and not an equivalence between
minority and non-minority institutions to engraft their own
H "sources" or "classes" of students from within the
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 611
& ORS.
general pool. The rights of minority unaided educational A
institutions to select students, based on merit, is with
respect to students who belong to that same minority. It
is not a right to define a source as such. Minority
institutions have to choose from their own minority
group who are otherwise qualified, and non-minority B
institutions have to choose from the entire group who are
otherwise qualified. The modality of choosing within
those groups has to be on the basis of inter-se ranking
determined in accordance with marks secured in ·the
common entrance test. [paras 54 and 55) [662-D-H; 663- c
G H; 664-A]
0
* P.A. lnamdar V; State of Maharashtra 2005 (2) Suppl.
SCR 603 = 2005 (6) SCC 537 - refE!rred to.
3.3. In view of Clause (5) of Article 15 of the D
Constitution, the unaided non-minority educational
institutions would have to comply with the State
mandated reservations, selecting students within the
specified reservation categories on the basis of inter-se
merit. With respect to the remaining seats, the state insist E
that non-minority private unaided institutions select the
most meritorious students, as determined by the marks
secured in the qualifying test. In the post clause (5) Article
15 scenario, all the seats that are available in the non-
reserved category have to be filled by non-minority F
institutions on the basis of merit of students, i.e., ranking
determined in accordance with marks secured, in the
general category, comprising of the entire set of students
who have taken the qualifying examination. [paras 56 and
57] [664-G-H; 665-D-E; 666-A-C] G
3.4. Neither AWES nor ACMS, are protected by any
constitutional provision that allows it to choose to be an
educational institution serving only a small class of
students from within the general pool. Consequently, all
of the permissible restrictions and regulations under H
612 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Clause (6) of Article 19 that non-minority institutions
would be subject to, would also be applicable with
respect to ACMS. These regulations would also include
a determination of how students in the non-reserved
category of seats, in the post 93rd Amendment scenario,
B be admitted: on the basis of merit, determined by marks
secured on the common entrance test. Maintenance of
overall academic standards, which apparently can be
properly achieved only if high importance is placed on
admitting students on the basis of ranking determined by
c marks secured in entrance tests, is necessarily a State
concern, which it may relax only in respect of those
groups that it is constitutionally permitted to relax for. In
the case of minority educational institutions, that
relaxation is on account of Clause (1) of Article 30
0 provided minority educational institutions are maintaining
their minority status by admitting mostly minority
students except for a sprinkling of non-minorities; and
with respect to non-minority educational institutions, only
with respect to statutorily determi'led percentage of seats
E for Scheduled Castes, Scheduled 1ribes, and socially and
educationally backward classes as enabled by Clause (5)
of Article 15 and other constitutionally permissible
classes. With respect to socially and educationally
backward classes, such classes can be determined only
after excluding the creamy layer, as held by this Court in
F Ashoka Kumar Thakur*. [para 61) [671-A-H; 672-A]
*Ashoka Kumar Thakur v. Union of India 2008 (4) SCR 1
=(2008) 6 sec 1 - relied on.
G 3.5. Non-minority private unaided professional
colleges do not have the right to choose their own
"source" from within the general pool. The equivalence
between minority and non-minority unaided institutions,
apart from that distinction because of clause (1) of Article
H 30, was to be on the basis that both are subject to
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 613
& ORS.
· reasonable restrictions pursuant to clause (6) of Article A
19, that neither minority nor non-minority institutions
could maladminister their educational institutions,
especially professional institutions, that affect the quality
of education, and by choosing students arbitrarily from
within the sources. that they are entitled to choose from.. 8
In the case of non-minority institution, especially
professional institutions, the "source" can only be the
general pool, and selection has to be based on inter-se
ranking of students who have qualified and applying or
opting to choose to be admitted to such non-minority C
educational institutions. In the case of minority
educational institutions, the "source" can be delimited to
the particular minority the institution belongs to. The
protection under clause (1) of Article 30 is granted to
minority institution so long as they maintain their minority
status. The added protections to minority educational 0
institutions makes sense only in the event that non-
minorities are restricted to choosing from the general
pool, and minorities from the delimited source of their
own minority. Otherwise, Clause (1) of Article 30 would
become meaningless. [para 64] [674-F-H; 675-A-B] E
3.6. Consequently, it cannot be said that ACMS as a
non-minority professional institution has the right to
delimit a source of students. ACMS has only the right to
choose students from within the general pool. [para 65] F
[675-B-C]
3.7. The relief of exemptions granted to ACMS to fill
up all of its seats only with wards of army personnel on
account of national interest, given the ratio of P.A. G
lnamdar, can not be granted on that count. It may indeed
be the case that army personnel, particularly, those at the
lower end of the hierarchy in the army, and their families,
may be suffering from great hardships. It would indeed
be, and ought to be a matter of considerable national
H
614 SUPREME COURT REPORTS [2011] 6 S.C.R.
A distress if persons who have agreed to lay down their
lives, for the sake of national security, are not extended
an empathetic understanding of their needs and
aspirations. However, the ratio of the judgments in TMA
Pai, Islamic Academy and P.A. lnamdar, by larger
8 benches of this Court, leaves this Court with no options
with respect to holding that ACMS may select only those
students who have scored higher marks in the common
entrance test with respect to seats remaining after taking
into account reserved seats. If any special provisions
C need to be made to protect the wards of Army personnel,
this may possibly be done by the State, by laws
protected by Clause (5) of Article 15. The private society,
of former and current army personnel by themselves
cannot unilaterally choose to do the same. [para 66] [675-
D E-H; 676-A-B]
TMA Pai Foundation v. State of Karnataka 2002 (3)
=
Suppl. SCR 587 (2002) 8 SCC 481 ;Islamic Academy of
Education v State of Kamataka 2003 (2) Suppl. SCR 47 4 =
(2003) 6 SCC 697; and P.A. lnamda. ·v. State of Maharashtra
E 2005 (2) Suppl. SCR 603 = 2005 (6) SCC 537 - followed.
4.1. Clause (5) of Article 15 does not violate the basic
structure of the Constitution. [para 148] [742-F-G]
4.2. It would be pertinent to note that the provisions
F of new clause (5) of Article 15 do not purport to take away
the power of judicial review, or even access to courts
through Articles 32 or 226. Neither do the provisions of
clause (5) cf Article 15 mandate that the field of higher
education be taf(en over by the State itself, either to the
G partial or total exclusion, of any private non-minority
unaided educational institutions, a power that was most
certainly granted under clause (6) of Article 19, which had
been inserted by the 1st Constitutional Amendment in
1951. The purport of its provisions is that sub-clause (g)
H clause (1) of Article 19 should not be read to mean that if
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 615
& ORS.
the State were to make "special provisions" with respect A
to admission of Scheduled Castes, Scheduled Tribes, and
socially and educationally backward classes to non-
minority unaided educational institutions the same should
not be deemed to be unreasonable. [para 78) [686-E-H;
687-A] B
l.R. Coelho v. State of Tamil Nadu 2007 (1) SCR 706 =
(2007) 2 SCC 1; 1.C. Golaknath v. State of Punjab (1967) 2
SCR 762; Keshavananda Bharati v. State of Kera/a. 1973
=
Suppl. SCR 1 (1973) 4 SCC 225; Waman Rao v. Union
=
of India, 1981 ( 2) SCR 1 (1981) 2 SCC 362; M. Nagaraj C
v Union of India (2006) 8 SCC 202; A.K Gopalan v State of
Madras 1950 SCR 88; S.R. Bommai v. Union of India 1994
=
( 2 ) SCR 644 (1994) 3 SCC 1; and GVK Industries Ltd.
Vs, /TO (2011) 4 SCC 36 • referred to.
D
4;3. It is now a well settled principle of our
constitutional jurisprudence that Article 14 does not
merely aspire to provide for our citizens mere formal
equality, but also equality of status and of opportunity.
The goals of the nation-state are the securing for all of its E
citizens a fraternity assuring the dignity of the individual
and the unity of the nation. While Justice - social,
economic and political is mentioned in only Article 38, it
was also recognized that there can be no justice without
equality of status and of opportunity. [para 99) [702-A-B] F
4.4. The placement of clause (5) of Article 15 in the
equality code, by the 93rd Constitutional Amendment is
of great significance. It clearly situates itself within the
broad egalitarian objectives of the Constitution. In this G
sense, what it does is that it enlarges as opposed to
truncating, an essential and indeed a primordial feature
of the equality code. Furthermore, both M. Nagaraj and
Ashoka Kumar Thakur stand for the proposition that
enlargement of the egalitarian content of the equality code
H
616 SUPREME COURT REPORTS [2011] 6 S.C.R.
A ought not to necessarily be deemed as a derogation from
the formal equality guaranteed by Article 14, 15(1) or 16(1).
Achievement of such egalitarian objectives within the
context of employment or of education, in the public
sector, as long as the measures do not truncate elements
B of formaJ equality disproportionately, were deemed to be
inherent parts of the promise of real equality for all
citizens. As stated succinctly in M. Nagaraj, it is an issue
of proportionality. "Concept of proportional equality
expects the State to take affirmative action in favour of
c disadvantaged sections of the society within the
framework of liberal democracy" and further that "[U]nder
the Indian Constitution, while basic liberties are
guaranteed and individual initiative is encouraged, the
State has got the role of ensuring that no class prospers
0
at the cost of other class and no person suffers because
of drawbacks which is not of his but social." (para 105] [706-
H; 707-A-D)
M. Nagaraj v Union of India (2006) 8 SCC 202 - relied
on.
E
M.R. Balaji v State of Mysore 1963 Suppl. SCR 439 =
AIR 1963 SC 649; Devadasan v. Union of India 1964 SCR
680 =AIR 1964 SC 179; State of Kera/a v. N.M. Thomas
1976 ( 1 ) SCR 906 =AIR 1976 SC 490 and Indra Sawhney
F v Union of India 1992 (2) Suppl. SCR 454 = (1992) Supp
(3) SCC 217; State of Kamataka v Ranganatha Reddy (1977)
4 sec 471 - referred to.
4.4. The same principles which this Court found to
be applicable in finding egalitarianism to be a part of the
G equality code, at the level of being essential features
informing the entire equality code, per force have to also
be applied to the context of private sector unaided
educational institutions. It is indeed true that the extent
of State involvement in the field of higher education has
H dramatically declined on account of its own financial
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 617
& ORS.
position. An essential understanding was that because A
the private sector would expand even in areas such as
higher education, the burden on the State of providing
such services would decline. The burden of the State
does not comprise merely of the burden of its financial
outlays. The burden of the State obviously also B
comprises of the positive obligations imposed on it, on
account of the egalitarian component of the equality
code, the directive principles of State policy, and the
national goals of achievement of an egalitarian order and
social justice for individuals and amongst groups that c
those individuals are located in. [para 108] [709-G-H; 710-
A-F] ,
Indra Sawhney v Union of India 1992 (2) Suppl. SCR
=
454 (1992) Supp (3) SCC 217 - M. Nagaraj v Union of
India (2006) 8 SCC 202 Ashoka Kumar Thakur v. Union of D
India 2008 (4) SCR 1 = (2008) 6 SCC 1 - relied on.
4.5. The power of the State to allow participation of
the private sector to function in the field of higher
education could only have existed if the State had the E
power to devise policies based on circumstances to
promote general welfare of the country, and the larger
public interest. The same cannot be taken to mean that
a constitutional amendment has occurred, in a manner
that fundamental alteration has occurred in the basic F
structure itself, whereby the State is now denuded of its
obligations to pursue social justice and egalitarian ideals,
inscribed as an essential part of our constitutional
identity, in those areas which the State feels that even
resources in the private sector would need to be used to· G
achieve those goals. [para 109] [711-D-F]
4.6. The conception of social justice is to be found
not just in Article 38, in part IV of our Constitution. The
same concern for social justice is also reflected in Clause
(2) of Article 15. Further, Clause 4 of Article 15 specifies H
618 SUPREME COURT REPORTS [2011] 6 S.C.R.
A that "Nothing in this article or in clause (2) of Article 29
shall prevent the State from making any special provision
for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes". [para 112] [714-D-F]
B 4.7. The nature of judicial review of a constitutional
amendment, in which over-arching principles informing
all of the fundamental rights have to be gleaned and
subjected to the test of abrogation of basic structure,
comprises a particular form of constitutional
C interpretation In which the essences of each of those
over-arching principles has to be gleaned and an
amendment to the constitution has to be evaluated as
being lawful or unlawful, in terms of implied limitations of
power, as it effects those essences. (para 121] (722-G-H;
D 723-A-B]
4.8. By the insertion of Clause (5) of Article 15,.the
93rd Constitutional Amendment has empowered the State
to enact legislations that may have very far reaching
E beneficial consequences for the nation. In point of fact,
each and every one of the beneficial consequences
discussed in this judgment as being possible, would
enhance the social justice content of the equality code,
provide for enhancements of social and economic
welfare at the lower end of the social and economic
F spectrum which can only behoove to the benefit of all the
citizens thereby promoting the values inherent in Article
21, promote more informed, reasoned and reasonable
debate by Individuals belonging to various deprived
segments of the population in the debates and formation
G of public opinion about choices being made, and the
course that political and institutional constructs are
taking in this country. Consequently, clause (5) of Article
15 strengthens the social fabric in which the
Constitutional vision, goals and values could be better
H achieved and served. ~para 122] (723-B-E]
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 619
& ORS.
4.9. It cannot be said that TMA Pal, as explained by A
P.A. lnamdar also provide the appropriate content for
undertaking an "essences of rights test" i.e., an "over-
arching principles" test, as enunciated by M. Nagaraj, to
assess whether a Constitutional amendment, such as the
93rd Constitutional Amendment, violates the basic B
structure. Indeed TMA Pai, is an eleven judge bench
judgment, and P.A. lnamdar a seven judge bench
judgment. However, the very eloquent silence of the two
benches as to whether the contents they have read into
sub-clause (g) of clause (1) of Article 19 to constitute a c
basic feature of the Constitution, is itself a clear indication
that this Court, in those judgments was not engaging in
that type of analysis. This Court, through another
constitutional bench, Islamic Academy, had also
exhaustively examined the ratio in TMA Pai,, and there is
0
not even a whisper therein that there is any indication in
TMA Pai, that the right of private unaided educational
institutions to be free from reservations would constitute
· a right of such magnitude that its partial truncation would
abrogate the basic structure of our Constitution and
change its very identity. What TMA Pai did was essentially E
to engage in a "reasonableness standard" test based on
the text of Article 19(1)(g). Nothing more. [para 130] [728-
B-F]
4.1 O. Therefore, the unexamined aspects, including F
the contents of the very occupation that is guaranteed by
sub-clause (g) of clause (1) of Article 19 have to be looked
at. This is imperative because a test of a constitutional
amendment on the anvil of the basic structure doctrine
using the "essences of rights" test I.e., the "over-arching G
principles test" is an entirely different exercise from a
mere "unreasonableness tesf' undertaken by this Court
In TMA Pai. [para 132] [729-D]
4.11. Reservations, for socially and educationally
backward classes and Scheduled Castes and Scheduled H
620 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Tribes, would ensure that students from different social,
educational, economic and cultural backgrounds get
together to study, and learn about each other, and
critically assess the relevance, in the manner in which
knowledge is generated, disseminated, and applied. This
B necessarily relates to the standards and purposes for
which higher education, including professional
education, is imparted. [para 142] [736-D-F]
4.12 . .=ducation is one of the principal human
activities to establish a humanized order in our country.
C Its ontological specification is simple: every individual, in
every group, is worthy of being educated. In as much as
certain resources, such as seats in institutions of higher
education, including professional education, are scarce,
then they have to be allocated. The allocation can only
D be based on the fundamental ontological assumption that
those who excel, within equal social circumstances,
should be rewarded with access to higher education. Any
other formula of distribution of such access, would be
fundamentally inhuman, and violate Article 14 of our
E Constitution. The fact that non-minority unaided
educational institutions insist on "social disadvantages
blind" admission policies is proof that they are not
recognizing the true purpose of education as an
occupation.Therefore, State intervention is a categorical
F imperative, both morally and within our constitutional
logic. [para 146] [740-G-H; 741-A-C]
4.13. Consequently, given the absolute necessity of
achieving the egalitarian and social justice goals that are
implied by provisions of clause (5) of Article 15, and the
G urgency of such a requirement, this Court holds that they
are not a violation of the basic structure, but in fact
strengthen the basic structure of our constitution.
Consequently, the provisions of Delhi Act 80 of 2007, with
respect to various categories of reservations provided
H therein are constitutionally valid. [para 148] (741-G-H]
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 621
& ORS.
5. The impugned judgment of the Delhi High Court A
is set aside. Consequently, the respondents are directed
to admit the writ petitioners into the First Year of MBBS
Course in Army College of Medical Sciences, if the writ
petitioners still so desire, for they have been deprived of
their legitimate right of admission to the course, for no B
fault of theirs, notwithstanding the rank secured by them
in the CET. It is true that they have appeared at the
common entrance examination held long ago and
qualified themselves to get admitted but were deprived
of the same on account of the illegal admission policy of c
Army College of Medical Sciences permitted by the
Government of Delhi. In the circumstances, all the
respondents are accordingly directed to ensure that the
writ petitioners are admitted into the First Year MBBS
Course in the ensuing academic year by creating
0
supernumerary seats. However, it is made clear that the
admissions already made by Army College of Medical
Sciences are saved and shall not be affected in any
manner whatsoever. [para 148] [742-G-H; 743~A-C]
D.N. Chanchala v. State of Mysore (1971) 2 SCC 293; E
Unnikrishnan J.P. v. State of A.P. 1993 (1) SCR 594 =1993
(1) SCC. ·645; Rev. Sidhajbhai Sabhai v. State of Gujarat
(1963) 3 SCR 837; Ahemdabad St. Xavier's College Society
v. State of Gujarat 1975 (1) SCR 173 = (1974) 1 SCC 717;
Minerva Mills Ltd. V Union of India 1981 (1) SCR 206 = F
(1980) 3 SCC 625; l.R. Coelho v. State of Tamil Nadu 2007
(1) SCR 706 = (2007) 2 SCC 1; /. C. Go/aknath v. State of
Punjab (1967) 2 SCR 762; Indira Nehru Gandhi v Raj Narain,
1976 SCR 347 =1975 Supp SCC 1; Devadasan v. Union of ·
India 1964 SCR 680 =AIR 1964 SC 179; State of Kera/av. G
N.M. Thomas 1976 (1) SCR 906 =AIR 1976 SC 490; State
of Karnataka v Ranganatha Reddy (1977) 4 SCC 471 -
referred to.
The Argumentative Indian - Writings on Indian History,
Culture and Identity, Picador (2006); Seamus Heaney, The H
622 SUPREME COURT REPORTS [20111 6 S.C.R.
A Cure at Troy: A Version of Sophocles' Philoctetes,
(London Faber and Faber, 1991); cited in Sen, Amartya,
The Idea of Justice (Allen Lane, 2009); Eight Edition, Oxford
University Press (1990); Plutarch: Theseus, trans. John
Dryden.; W.W. Norton and Company (2002); Meritocracy
B and Economic Inequality, Oxford University Press; Oxford
University Press (1997); Rawat Publications (2005)
Constituent Assembly Debates - Vol. VII. Mahendra P. Singh,
·v.N. Shukla's Constitution of India", 11th Ed. (Eastern Book
Company, 2008); Introduction in Meritocracy and Economic
c Inequality, ed by Arrow, Samuel Bowles and Steven
Durlauf; · Sukhadeo Thorat, Aryama and Prasant Negi (Eds.)
Quest for Equal Opportunity and Growth (2007); Capitalism,
Socialism and Democracy, Martino Fine Books (201 O); MIT
Press (2006); Devesh Kapur & Pratap Bhanu Mehta,
0 Mortgaging the Future? Indian Higher Education (2007); The
Concise Oxford Dictionary (19CO); Learning To Be: The
World of Education Today and Tomorrow - Unesco Paris
1972; Jossey Bass, 1st Ed (2004) Harvard Educational
Review (2000); Continuum, New York (30th Anniversary
E Edition, 2005) - referred to.
Case Law Reference:
2002 (3) Suppl. SCR 587 followed para 17
2005 (2) Suppl. SCR 603 followed para 17
F
2003 (2) Suppl. SCR 47 4 followed para 19
(1971) 2 sec 293 referred to para 24
1993 (1) SCR 594 referred to para 26
G 2008 (4) SCR 1 relied on Para 27
(1964) 2 SCR 87 relied on Para 33
(1955) 2 SCR 225 relied on para 40
H (1971) 1 sec 607 relied on Para 40
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 623
& ORS.
(1963) 3 SCR 837 referred to para 60 A
1975 (1) SCR 173 referred to para 60
1981 (1) SCR 206 referred to para 70
2007 (1) seR 706 referred to para 71 B
(1967) 2 SeR 762 referred to para 73
1973 Suppl. SeR 1 referred to para 73
and 88
1976 seR 347 referred to para 75 c
1981 (2) SeR 1 referred to para 80
(2006) 8 sec 202 referred to para 80
1950 SCR 88 referred to para 86 D
1994 (2) SCR 644 referred to para 86
(2011) 4 sec 36 referred to para 103
1963 Suppl. SCR 439 referred to para 106
E
1964 SCR 680 referred to para 106
1976 (1) seR 906 referred to para 106
1992 (2) Suppl. SeR 454 relied on para 106
F
(1977) 4 sec 471 referred to para 107
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8170 of 2009.
From the Judgment & Order dated 25.2.2009 of the High G
Court of Delhi at New Delhi in LPA No. 756 of 2008.
WITH
W.P. (c) Nos.192 of2010, 320 & 528 of2009 & C.A. No. 8171
H
624 SUPREME COURT REPORTS [2011) 6 S.C.R.
A of 2009.
Gaurab Banerjee, ASG, K.K. Venugopal, Jaideep Gupta,
T.S. Doabia, A. Sharan, J.S. Attri, Dr. Aman Hingorani, Priya
Hingorani, Reema Bhandri, Swati Sumbly (for Hingorani &
B Assciates), Dipak Kumar Jena, Minakshi Ghosh Jena, Shyam
Mohan, Man Mohan, Dharam Das, Sadhna Sandhu, Shailender
Saini, D.S. Mahra, Gautam Jha, Anil Katiyar, Amit Kumar,
Somesh Chandra Jha, A.K. Singh, Devashish Bharuka, Ajay
Pal, Prashant Shukla, Anita Sahani, Purnima Bhat Kak for the
C appearing parties.
The Judgment of the Court was delivered by
B. SUDERSHAN REDDY, J.
Where the mind is without fear and the head is held high
D Where knowledge is free
Where the world has not broken up into fragments
By narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards
E perfection
Where the clear stream of reason has not lost its way
Onto the dreary desert sand of dead habit
Where the mind is led forward by thee
Into ever-widening thought and action
F Into that heaven of freedom, my Father, let my country
awake.
- Poet Laureate, Rabindranath Tagore
I.
G 2. The vexed question of access to education has hounded
India from times immemorial. The futile pleadings of an
Ekalavya for a teacher, that could not even be suppressed in
the recesses of our cultural consciousness, to the modern day
demands for exclusion from portals of knowledge of the
H "others", deemed to be unfit even if lip service of
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 625
& ORS. [B.SUDERSHAN REDDY, J.]
acknowledgement is paid that such "unfitness" may be due to . A
no fault of theirs but. is rather on account of their social, -
economic and cultural circumstances, gouges our very national
soul. Even as higher levels of knowledge becomes vital for
survival, and its technologies become capable of empowering
those who belong to groups, that historically and in the present B
have been excluded from the liberating prowess of knowledge,
this country seems to witness, as in the past, a resurgence in
demands that knowledge be parceled out, through tight fisted
notions of excellence, and concepts of merit that pander to the
early advantages of already empowered groups. c
3. For much of our history, most of our people were told
that they were excluded, for no fault of theirs in this and here,
but on account of some past mistakes. Hope was restricted to
the duty that was supposed to attach itself to station ascribed
by a cruel fate, cast as cosmic justice. This order that parceled D
knowledge, by grades of ascribed status, chiefly of birth and
of circumstances beyond the control of the young, weakened
this country. It weakened our country because it reduced the
pool of those who were to receive higher levels of knowledge
to only a small portion of the upper crust. This in turn weakened E
our method of knowing and creating new knowledge -
knowledge of the deductive kind was extolled primarily for its
elegance, and its practical significance derided, and soon
enough turned into metaphysics of mysticism that palliated the
deprived with paens of a next life. This weakened our ability to F
apply knowledge to practical affairs of all segments of
population, and effectively shut off the feed back loop that
practice by users could have provided, so that new knowledge
could be generated. Our practical knowledge ossified, and
deductive knowledge became ever more ready to justify the G
worth of the high and the mighty, for such justification brought
status to the peddlers of mysticism and enabled the high and
the mighty to evade questions of accountability to the masses.
4. It was that truth that our national poet spoke about when
he prayed that knowledge would be free. It was that truth that H
626 SUPREME COURT REPORTS [2011] 6 S.C.R.
A the makers of modern India, those great souls, who could see
the causes for past events, and foresee the needs of the future,
tried to inscribe in our Constitution. It is not any wonder that our
first Prime Minister in the excitement of the first seconds of
freedom from foreign rule spoke about our "tryst with destiny"
B to the Constituent Assembly, and yet in the same breath also
added "now the time comes when we shall redeem our pledge,
not wholly or in full measure, but very substantially.• As Amartya
Sen points out those were heady times, of promises made and
of hope kindled 1 • And we, as a nation, promised ourselves that
C our huddled masses, condemned to rot in squalor, ignorance
and powerlessness on account of the incessant exploitation by
the elites, and on account of enforced hierarchies of social
stature and worth, will never again acknowledge as a teacher,
a person who will say that he will teach only members of this
group, and not that group. To each and every group, and to each
0
and every individual in those groups, we promised that never
again would we allow social circumstances of the groups they
belonged to be a factor in our assessment of their social worth.
We gave our people the hope that we, the upper crust of India
will change, and that their patience and tolerance of our
E inhumanity, over many millennia in the past aod for a few
decades more into the future, will soon be rewarded by our
humanization.
History says, Don't hope
On this side of the grave,
F
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme. 2
G 5. We formed our nation-state to make sure that hope and
1. The Argumentative Indian-Writings on Indian History, Culture and Identity,
Picador (2006).
2. Seamus Heaney, The Cure at Troy: A Verson of Sophocles' Philoctetes,
(London Faber, 1991); cited in Sen, Amartya, The Idea of Justice (Allen
H Lane, 2009)
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 627
& ORS. [B.SUDERSHAN REDDY, J.)
history, as an actuality of experience of our people - all of our A
people, belonging to all of the groups into which they belonged
to - would indeed rhyme. That is what our Constitution
promises. And that is the motive force that informs the basic
structure of our Constitution. Our fealty to that motive force is
as sacred a promise that we as a nation have ever made to B
ourselves. Every other commitment can be assessed only on
the touchstone of that motive force that balances hope and
actuality of history, with hope progressively, and rapidly, being
transcribed into actuality of real equality.
6. In contrast to the above, a strange interpretation has C
been pressed upon us in this instant matter. On the one hand
it is contended that the State has to be denied the power to
achieve an egalitarian social order and promote social justice
with respect to deprived segments of the population, by
imposing reservations on private unaided educational D
institutions, on the ground that this Court has held that private
non-minority unaided educational institutions cannot be
compelled to select students of lower merit as defined by marks
secured in an entrance test, notwithstanding the fact that the
State may have come to a rational conclusion that such E
underachievement is on account of social, economic or cultural
deprivations and consequerit denial of admissions to
institutions of higher education deleterious to national interest
and welfare. On the ottier hand it is contended that private
unaided non-minority educational institutions, established by F
virtue of citizens claimed right to the charitable occupation,
"education", an essential ingredient of which is the unfettered
right to choose who to admit, may define their own classes of
students to select, notwithstanding the fact that there may be
other students who have taken the same entrance test and G
scored more marks. It would appear that we have now entered
a strange terrain of twilight constitutionalism, wherein
constitutionally mandated goals of egalitarianism and social
justice are set aside, the State is eviscerated of its powers to
effectuate social transformation, even though inequality is H
628 SUPREME COURT REPORTS [2011] 6 S.C.R.
A endemic and human suffering is widely extant particularly
amongst traditionally deprived segments of the population, and
yet private educational institutions can form their own exclusive
communes for the imparting of knowledge to youngsters, and
exclude all others, despite the recognized historical truth that it
B is such rules of exclusion have undermined our national
capacity in the past.
7. The main issues that present themselves to us in these
matters before us relate to the following:
C (1) Can the executive abrogate a legislatively
mandated and specified social justice program in
the field of education?
(2) Do private non-minority unaided professional
D educational institutions have the right to pre define
a social group and admit into their institutions from
only those social groups and exclude all other
students the opportunity of being considered for
admission into such edurational institutions?
E It is against the background of the ark of hope that our
Constitution is, that we have to answer the above questions.
II
F Facts of the Case:
The Private Non-Minority Unaided Professional
Educational Institution
8. The private educational institution, started and managed
G by the Army Welfare Education Society ("AWES"), named
I Army College of Medical Sciences ("ACMS"), located in the
National Capital Territory of Delhi ("NCT of Delhi"), seeks to
admit only students who are wards or children of current and
former army personnel and widows of army personnel
~ (henceforth, we will be referring this entire group as "wards of
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 629
& ORS. [B.SUDERSHAN REDDY, J.]
army personnel" for ease of use). A
9. AWES, it is stated, is a charitable trust that has been
set up to cater to the educational needs of wards of Army
personnel, both current and former, and widows of Army
personnel. It is stated that the operation of its educational
institutions is funded purely from regimental funds, which have B
been recognized to be private funds and not that of the Indian
Army. AWES was given on lease, an extent of a little over 25
acres of land in the NCT of Delhi under the control and
possession of Ministry of Defence in order to enable it to start
ACMS, and meet the regulatory requirement regarding extent C
of land that a private medical college ought to have for its
college campus. In addition, ACMS has also been provided the
facility of using the Army Hospital in NCT of Delhi, both for its
scholars to fulfill the necessary clinical training at such an
hospital, and also to fulfill the regulatory requirement that a D
medical college possess access to a general hospital of
sufficient number of beds as assurance of availability of facilities
to meet the curricular requirements.
10. It is also stated that the wards of army personnel suffer E
from extensive disadvantages that children of the regular civilian
population do not face. It is of course well recognized that army
personnel are, by the very nature of their job, deputed to serve
in various inhospitable terrains, or in regions with scant facilities.
Such assignments imply non-availability of proper .educational
facilities for their wards in large periods of the critical growing F
periods of the children. Further, in order to facilitate the
education of the children, personnel of army are also compelled
to maintain dual homes, where the member of the army
personnel is in one place, and· his family resides in another
place. This places tremendous economic hardships, which G
could be conceived as also imposing hardships in being able
to secure any special coaching or training for the children.
Further, the absence of the father figure could also imply a
certain imbalance in family lives. All these contribute to lowered
educational attainments of wards of army personne!, relative to H
630 SUPREME COURT REPORTS (2011] 6 S.C.R.
A the civilian population, and hence lowered performance in
qualifying examinations for various educational institutes at the
college level, particularly the professional colleges. It is also
contended that the seats reserved for Defence personnel, at
college level, also do not satisfy the needs of children and army
B wards because of paucity of total seats and stringent domicile
requirements enacted by State legislatures.
The admission policy of the private non-minority unaided
professional educational institution.
c 11. ACMS, in the year 2008, began to admit students. It
sought to do this by a set of rules framed by itself, and which
may be briefly stated as follows:
(a) That only those students who have the relevant
D qualifying high school education and who have taken the
common entrance test conducted by appropriate
authorities for admission to medical colleges in the NCT
of Delhi, and have secured the minimal qualifying marks
in such a test, shall be eligible to apply to ACMS;
E (b) Of the students satisfying (a) above, only those who are
wards or children of former and current army personnel and
widows of army personnel (including those who have died
in service) shall be eligible for admission;
F (c) that within the group of students satisfying conditions
(a) and (b) above, admission based on strict inter-se
ranking, based on marks secured in the common entrance
test shall be followed for admitting students; and
(d) there shall not be any distinction whatsoever, on the
G basis of social, economic or cultural background amongst
the group comprising the wards of army personnel.
The relevant laws of the affiliating university and the State
Government applicable to private unaided non-minority
H professional educational institutions.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 631
& ORS. [B.SUDERSHAN REDDY, J.]
12. At this preliminary stage it would appear that the A
admission policy of ACMS to have been undertaken in the
teeth of two different sets of laws which are applicable: (a) the
State act, "Guru Gobind Singh lndraprastha University Act,
1998" ("GGSIU Act 1998") that led to the establishment of the
university granting affiliation to ACMS, the Guru Gobind Singh B
lndraprastha University ("GGSIU"), and the various ordinances
promulgated by the Board of Management ("BoM") of GGSIU;
and (b) the 'The Delhi Professional Colleges or Institutions
(Prohibition of Capitation Fee, Regulation of Admission,
Fixation of Non-Exploitative Fee And Other Measures to Ensure c
Equity And Excellence) Act, 2007 ("Delhi Act 80 of 2007"). The
relevant portions of the applicable laws are reproduced below.
Section 6 of GGSIU Act, 1998 provides as follows:
"(1) The University shall be open to persons of either sex D
and of whatever race, creed, caste or class, and it shall
not be lawful for the University to adopt or impose on any
person any test whatsoever of religious belief or profession
or political opinion in order to entitle him to be appointed
as a teacher of the University or to hold any office therein E
or to be admitted as a student of the University, or to
graduate thereat, or to enjoy or exercise any privilege
thereof;
(2) Nothing in this section shall be deemed to prevent the F
University from making any special provision for the
appointment or admission of women or of persons
belonging to the weaker sections of the society, and in
particular, of persons belonging to the Scheduled Castes
and the Scheduled Tribes."
G
13. The Board of Management of GGSIU, pursuant to
Sections 27 and 6(2) of GGSIU Act, 1998, enacted Ordinance
30; vide Board of Management Resolution No. 31.5 dated
August 25, 2006, entitled Reservation Policy for the Self-
Financing Private Institutions affiliated with the Guru Gobind H
632 SUPREME COURT REPORTS (2011] 6 S.C.R.
A Singh lndraprastha University. The said Ordinance 30 states
that "for making special provisions for the advancement of
weaker sections of the society, and in particular of persons
belonging to the Scheduled Castes and Scheduled Tribes"
certain percentage of seats shall be reserved by every affiliated
B college. The reservations were as follows: (i) Scheduled Castes
(15%); (ii) Scheduled Tribes (0.5%); (iii) Defence Category
(5%); (iv) Physically Handicapped (3%); and (v) Supernumerary
Seats for Kashmiri Migrants (one seat). The said reservations,
it is explicitly acknowledged were being provided for pursuant
c to Clause 5 of Article 15 of the Constitution, which was inserted
by Constitution (Ninety Third Amendment) Act, 2005, which
became effective on 20-1-2006. Ordinance 30 of GGSIU also
specifically left out educational institutions that are owned by
minorities from being subject to the reservations policy
D enunciated by it.
14. In addition to the above, as is the norm in rest of the
Country wherein educational institutions are subjected to the
laws of the legislature with territorial jurisdiction in which such
educational institutions are located, ACMS is also subject to
E the laws of the NCT of Delhi, the territorial jurisdiction in which
ACMS is located. In particular the applicable laws would be as
cited below.
The preamble of Delhi Act 80 of 2007 states that it is:
F "An Act to provide for prohibition of capitation fee,
regulation of Admission, fixation of non-exploitative fee,
allotment of seats to Scheduled Castes, Scheduled Tribes
and other socially and economically backward classes and
other measures to ensure equity and excellence in
G professional education in the National Capital Territory of
Delhi and for matters connected therewith or incidental
thereto".
Section 2 of Delhi Act 80 of 2007 provides that:
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 633
& ORS. [B.SUDERSHAN REDDY, J.]
"The provisions of this A.ct shall apply to - (a) Unaided A
institutions affiliated to a University imparting education in
degree, diploma and certificate courses."
Section 12 of Delhi Act 80 of 2007 provides that:
"Allocation and Reservation of Seats: B
(1) In every institution, except the minority institution
(a) subject to the provisions of this Act; ten percent of
the total seats in an unaided institution shall be
c
allocated as management seats;
(b) eighty five percent of the total seats, except the
management seats, shall be allocated for Delhi
students and the remaining fifteen percent seats for D
the outside Delhi students or such other allocatidn
as the Government may make by notification in the
official Gazette, direct;
(c) supernumerary seats for non-resident Indians and E
any other category shall be as may be prescribed.
(2) In the seats mentioned in sub-section (1). an
institution shall reserve-
(d) seventeen percent seats for the candidate F
belonging to the Scheduled Castes category, one
percent seats for the candidates belonging to the
Scheduled Tribes category and such percentage of
seats, for any other category including other
Backward Classes as may be prescribed; G
(e) for seats not mentioned as allocated for Delhi
students in sub-section (1), fifteen percent seats for
candidates belonging to the Scheduled Caste
category, seven and a half percent seats for the
H
634 SUPREME COURT REPORTS [2011] 6 S.C.R.
A candidates belonging to the Scheduled Tribes
category and such percentage of seats, for any
other category as may be prescribed.
(f) Subject to clause (a) and clause (b) above, three
percent seats for persons with disabilities as
8
provided in the Persons with Disabilities (Equal
Opportunities Protection of Rights and Full
Participation) Act, 1995 (1 of 1996) and such
percentage of seats for the wards of defence
personnel an any other category, as may be
c prescribed."
15. Further, Delhi Act 80 of 2007 also provides in Section
13 that all institutions "shall, subject to the provisions of this
Act, make admission through a common entrance test to be
D conducted by the designated agency, in such manner, as may
be prescribed'', and in Section 14 that any "admission made
in contravention of the provisions of this Act, or the rules
made thereunder, shall be void."
E 16. However, ACMS based its admission policy on certain
exemptions granted by the Government of Delhi exempting
ACMS' admissions from the operation of provisions of Delhi
Act 80 of 2007 with respect to allocations, as between Delhi
and non-Delhi students, reservations as mandated in Sub-
section (2) of Section 12, and the requirement that all
F admissions, in such reserved categories and with respect to
remaining seats, be based on inter-se merit as determined by
marks secured in the common entrance test. Such exemptions
it is claimed have been granted in exercise of powers allegedly
provided in Clause (b) of Sub-section (1) of Section 12 of the
G Delhi Act 80 of 2007. The said exemption specifically allowed
ACMS to admit only wards of army personnel in accordance
with ACMS's admission policy earlier noted herein. One of the
peculiar aspects of the granted exemption seems to be that
ACMS is mentioned to be the "Army" in the notification.
H 1. (1994) 4 sec 138.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 635
& ORS. [B.SUDERSHAN REDDY, J.]
17. The admission policy of ACMS was challenged in a A
slew of writ petitions. The writ petitioners, students who
otherwise would be eligible"to be considered for admission to
ACMS, and Indian Medical Association, challenged the above
admission policy in writ petitions filed in the Delhi High Court
inter-alia contending that: (1) TMA Pai Foundation v. State of B
Karnataka 3 , as further explained in P.A. lnamdar v. State of
Maharashtra4 , specifically mandated that all admissions to
private unaided non-minority professional institutions be only
based on merit, which is to be taken as inter-se ranking of all
the students who have taken the common entrance test; (2) c
even according to the rules and regulations of GGSIU or the
Delhi Act 80 of 2007, they would have secured an admission
in ACMS if it had followed the principle of inter-se ranking,
based on marks secured in the common entrance test, of all
the students applying to ACMS if ACMS had not proscribed 0
all non-wards of army personnel from applying; and (3) in fact
ACMS is an aided educational institution, in as much as it has
received massive aid from the State, in the form of expensive
land and access to Army Base Hospital in Delhi to meet the
curricular requirements of clinical training in a general hospital E
that is required by every medical college, per regulations of the
Medical Council of India.
18. In this regard, the defence of ACMS, and its parent
society, AWES, in the High Court has been that the exemptions
granted to it by the Government of Delhi were lawful, and hence F
they were well within the law in admitting students only from the
wards of army personnel as id~ntified by its admission policy.
Further ACMS, and AWES, also claim that in any event the ratio
of TMA Pai, as further explained by P.A. lnamdar, is that,
contrary to whatthe writ petitioners were claiming, they have G
an unfettered right, under Article 19(1)(g), to choose its own pre-
defined "source" of students. Further, ACMS and AWES claim
that in as much as such a choice is not a "reservation" per se,
3. (2002) a sec 481.
4. (2005) s sec 537. H
636 SUPREME COURT REPORTS [2011) 6 S.C.R.
A but only choice of "source" as rightly recognized by TMA Pai
(supra), and P.A. lnamdar (supra), and further because such a
source is only being delineated on the basis of occupation and
not on the basis of religion, race, caste, sex or place of birth
or any of them, and inter-se ranking within the "source" is based
B on qualifying marks in the common entrance test, and the
admission policy is otherwise transparent, fair and non-
exploitative the admission policy of ACMS ought to be upheld.
In addition, it is also submitted that in as much as wards of army
personnel suffer educational disadvantages, in comparison with
c the civilian population, and this affects the morale of army
personnel, it would be in the national interest to allow ACMS
and AWES to effectuate such admissions. Further, it is also
claimed that such a right has been recognized previously by
the courts in India. Further, with respect to it being an unaided
educational institution, it was argued that ACMS is run purely
0
out of regimental funds that have t.3en held to be private funds,
and not belonging to the Indian Army. Moreover, it is also
claimed that the lease granted to it by the Army and the Ministry
of Defense, in whose possession the public land, was for an
initial period of thirty years, extendable to ninety nine years, to
E which effect the Ministry of Defense has "in principle" agreed
to. Moreover, the access to Base Hospital of the Army in NCT
of Delhi was only for a temporary period, and that an exclusive
hospital for ACMS would soon be built. To this extent it was
submitted that ACMS is not an "aided institution" under Delhi
F Act 80 of 2007 as its day to day funds are met through fees
and regimental funds. Further, it was also submitted that MCI
has accepted the temporary arrangements with respect to
hospital facilities, and has granted a conditional permission,
which could be revoked if ACMS fails to meet the requirement
G of having its own hospital as required by regulations.
19. It appears that neither the writ petitioners nor ACMS
and AWES sought to challenge the Constitutional validity of
Delhi Act 80 of 2007 or of Ordinance 30 of GGSIU. It would
H appear that both parties proceeded under the assumption that
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 637
& ORS. [B.SUDERSHAN REDDY, J.]
Delhi Act 80 of 2007 and Ordinance 30 of GGSIU would be A
applicable but for exemptions granted by Government of Delhi.
This train of thought seems to have also affected the decisions
of the learned Single Judge and the Division Bench of the High
Court of Delhi, which decisions we broadly summarise below.
B
The learned single judge found that the claimed power to
exempt, by the Government of Delhi, under clause (b) of Sub-
section (1) of Section 12 of Delhi Act 80 of 2007 to be
applicable as regards only the 15% of seats remaining after
the seats allocated to management quota. Thereupon, using
various rationale, including the judgments of this Court in TMA C
Pai, P.A. lnamdar, and Islamic Academy of Education v State
of Kamataka 5 , engaged in an astonishing sequence of logic
that twisted and turned, and finally found that 79% of the seats
could be filled by wards of Army personnel, and the remaining
21% by students belonging to the general category. The D
legislatively mandated allotment of seats for various reserved
categories, including but not limited to Scheduled Castes and
Scheduled Tribes, was completely ignored.
On appeal by both sides, the Division Bench embarked E
upon a different mode of reasoning. In the first instance it held
that the enactment of Delhi Act 80 of 2007, implies that
Ordinance 30 of GGSIU has lost its relevance. Further,
analyzing Section 12 of Delhi Act 80 of 2007, the Division
Bench found that there is nothing in it that prohibits ACMS and F
AWES to admit only wards of army personnel in all its seats,
the Division Bench upheld the admission policy of ACMS. In
this regard, the Division Bench also over-ruled the finding of
learned Single Judge that the ratio of TMA Pai (supra)as
explained in P.A. lnamdar(supra), implied that ACMS needs to G
admit a "sprinkling" of students from the general category.
It is against the judgment of the Division Bench that
appeals by way of special leave petitions have been filed.
5. (2003) a sec 697: H
638 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Ill
The Submissions of the Appellants:
20. The learned Counsel for Appellants, Dr. Aman
Hingorani, submitted that ACMS is not an unaided institution,
8 and further it is also posited that ACMS and its parent society
be construed to be an "instrumentality of the State" under Article
12. To this effect the following facts were pointed out: (i) that a
little over 25 acres extent of expensive land has been given on
lease by Ministry of Defence, Union of India, in the Cantonment
C of Delhi; access has been provided to the Base Hospital; and
further that affairs of AWES and of ACMS are substantially and
wholly managed by regular officers of the Indian Army and
headed by the Chief of Army Staff; and (ii) that regulations of
Medical Council of India ("MCI") do not permit grant of
D permission for setting up of medical colleges unless the Society
setting up such a college owns such land and has its own
hospital of requisite number of beds, and further that the
permission was granted by MCI on the ground that ACMS was
in fact a governmental entity. It was contended that in such an
E event, the admissions to ACMS ought to be on the same
principles followed by the Armed Forces Medical College,
Pune. It is also contended that even if ACMS be deemed to
not be an instrumentality of the State, it could not be construed
as an unaided institution, on account of the massive aid by
F Ministry of Defence, merely because its day to day expenses
are taken care of by fees from students and regimental funds.
The implication pressed by Dr. Hingorani was that, in such a
case Delhi Act 80 of 2007 would not be applicable at all, as it
is intended to be applicable to unaided private professional
G institutions, and furthermore the exemptions granted by the
Government of Delhi from the operation of Delhi Act 80 of 2007,
and relied on by ACMS and AWES, in making the admissions
in the manner it has would also not be applicable. The
applicable law, consequently, would be Ordinance 30 of GGSIU,
H which provides that an upper limit on reservations to be 5% for
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 639
& ORS. [B.SUDERSHAN REDDY, J.]
'
wards of defense personnel. A
21. The learned Counsel for the Appellants also contended
that, even if ACMS were deemed to be both a private and an
unaided professional institution, the exemption granted by Delhi
Government in allowing ACMS to admit only wards of Army
8
personnel to 100% of its seats is ultra vires. In this regard it
was pointed out that sub-section (2) of Section 12 of Delhi Act
80 of 2007 vide clause (a) provides for specified reservations
for Scheduled Castes and Scheduled Tribes, and further,
through rules enacted pursuant to Section 23(g), the
Government of Delhi has fixed the percentage of reservations C
for wards of Defence personnel, as enabled by clause (c) of
Sub-section (2) of Section 12, at 5%. It was contended that
there is no provision in Delhi Act 80 of 2007 that allows
Government of Delhi to grant the exemption from the operation
of the requirement of merit based admissions, i.e., ranking D
based on marks secured in the common entrance test, from
within the entire class of students who have qualified in the
common entrance test and from the operation of the
reservations as provided therein. Further, it was also pointed
out that the power being claimed, vide clause (b) of Sub-section E
1 of Section 12 of Delhi Act 80 of 2007, by Government of Delhi
to grant such an exemption is only the power to vary the
percentage of allocable seats as between Delhi and non-Delhi
students, and not to allocate all the seats in ACMS to wards of
Army personnel. Moreover, it was also contended that in as F
much as private unaided educational institutions are essentially
rendering services that the State ought to be rendering; and
wherein such services are "public services," admitting only
wards of Army personnel in all the seats in ACMS would be a
violation of Article 14 and Article 15. G
22. In this regard, it was also argued by Dr. Hingorani that
even reservations cannot be to the extent of 100%, in as much
as such reservations would amount to a violation of Article 14,
and in any event any reservations with respect of constitutionally H
640 SUPREME COURT REPORTS (2011] 6 S.C.R.
A permissible classes would need statutory or executive provision.
In the event, the permission granted by Government of Delhi to
allow ACMS to admit only wards of Army personnel amounts
to a super-reservation and violates Article 14.
8 23. It was also argued by the learned Counsel that the
grant of permission to ACMS, to admit only wards of Army
personnel, without regard to the claim of those students who
have secured more marks would be a violation of the ratio of
TMA Pai, as explained in Islamic Academy, and P.A. lnamdar.
C The learned counsel submitted that the Constitution Bench in
Islamic Academy, in the course of interpreting Para 68 of the
TMA Pai judgment, held that the percentage of seats that the
management of an educational institution can fill up, could never
be 100%. In this regard, it was also contended that this Court,
in P.A. lnamdar, was only trying to ascertain whether, after TMA
D Pai, the State could impose its own reservation policy on
private unaided professional colleges. It was submitted by the
learned Counsel, that while P.A. lnamdar has held that
imposition of reservations by the State would be an
unreasonable restriction when imposed on non-minority private
E unaided educational institutions, it cannot be said that P.A.
lnamdar stands for the proposition that private non-minority
private unaided professional educational institutions could
select students from a pre-defined group from within the entire
general category, thereby disregarding the students in the
F general category who have received higher marks. Apart from
that, the holding in Islamic Academy that a quota that can be
filled up by the management at its sole discretion could never
be to the extent of 100%, has not been overruled by P.A.
lnamdar. Consequently, it must be taken that the ratio in Islamic
G Academy holds the field with regard to such questions. It was
also further contended that this Court in P.A. lnamdar has held
that professional colleges stand on an entirely different footing,
and that the requirement that admissions strictly be on the basis
of merit, as determined by marks in a common entrance test,
H in fact takes precedence over other considerations including
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 641
& ORS. [B.SUOERSHAN REDDY, J.]
the rights of managements of professional unaided non-minority A
colleges to select students according to their choice.
24. The learned Counsel while conceding that wards of
Army personnel may form a constitutionally permissible class
entitled to horizontal reservations under Article 15(1 );
8
nevertheless, relying on D.N. Chanchala v. State of Mysore6 it
was argued that such a horizontal reservation ought to be kept
at the least level possible, so that it does not whittle competitive
selection in the general category completely. In this regard it
was pointed out that horizontal reservations, even for 18.49
million disabled, forming 1.8% of India's population, is only 3%. C
In any event, wards of Army personnel already enjoy a wide
variety of preferential treatments, including reservations across
the country, as a part of reservations provided to wards of all
Defence personnel. In the instant case 5% reservations are
provided for wards of Defence personnel, under Ordinance 30 D
of GGSIU, and also pursuant to the rules of Delhi Government,
pursuant to Section 23(g) of Delhi Act 80 of 2007 and the power
granted by the enabling provisions in clause (c) of Sub-section
(2) of Section 12. To grant an exemption in favour of ACMS, in
contravention of specific statutory provisions, and to the E
exclusion of all other constitutional claimants to special
treatment, as also the claim of general students to equality,
would violate the discipline imposed by Articles 14 and 15 of
the Constitution.
F
The Submissions of the Respondents:
25. Learned Senior Counsel, Mr. K.K. Venugopal, and Mr.
Jaideep Gupta, appearing for the Respondents, dispute the
contentions of the Appellants that ACMS is an instrumentality
of the State, and also further dispute that ACMS is an aided G
institution. Pointing to the fact that AWES is a charitable trust,
set up purely with the object of promoting the welfare of wards
of Army personnel, and the fact that only regimental funds are
s. (1971) 2 sec 293. H
642 SUPREME COURT REPORTS [2011) 6 S.C.R.
A used in day to day affairs of ACMS, it was contended that
AWES and ACMS ought not to be treated as an instrumentality
of the State. It was also further contended that in both the
decisions of the High Courts, by the learned Single Judge and
the Division Bench, ACMS has been found to be an unaided
B educational institution, per the definition of such institutions in
Delhi Act 80 of 2007, and hence ought not to be disturbed.
Further, it was also submitted that ACMS conducted its
admissions on the basis of exemp!ions granted by Government
of Delhi, and as such meet the statutory requirements also.
c 26. Learned Senior Counsel, Mr. K.K. Venugopal
submitted that admissions being effectuated by ACMS ought
to be recognized as being based purely on inter-se merit i.e.,
marks received in common entrance test by wards of Army
personnel and that no reservations of seats were being made
D on the basis of caste, race, religion, residence/domicile,
backwardness or any such criteria. Tracing the history of the
law as applicable to reservations and admissions to colleges,
in case law from Unnikrishnan J.P. v. State of A.P. 7 , through
TMA Pai, Islamic Academy, to finally P.A. lnamdar, he submitted
E that P.A. lnamdar holds the field, in as much as it over-ruled
parts of Islamic Academy, and explained the eleven judge
bench decision of this court in TMA Pai. His main contention
was that this court in P.A. lnamdar has found that a private
unaided non-minority educational institution is entitled, under
F sub-clause (g) of clause (1) of Article 19, to the same rights as
a private unaided minority institution under Clause (1) of Article
30: i.e., in as much as minorities have the right to choose
students entirely from a "source" of their choice, non-minorities
should also have the same right to be able to pre-define a
G source from the general pool and admit qualified students only
from such a pre-defined source. In particular he relied on paras
127 and 137 of P.A. lnamdar. Specifically he relied on the
following observation in para 127: "Nowhere in Pai Foundation
either in the majority or in the minority opinion, have we found
H 7. (1993) 1 sec 645.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 643
& ORS. [B.SUDERSHAN REDDY, J.]
any justification for imposing seat-sharing quota by the State A
on unaided private professional educational institutions and
reservation policy of the State or State quota or management
seats." The learned Senior Counsel submitted that according
to P.A. lnamdar only a consensual agreement can be arrived
at between private unaided professional institutions regarding B
seat sharing, and the State could not unilaterally demand any
such sharing. In this regard, the learned Senior Counsel was
equating the demand by the Appellants that the State should
permit admissions to professional unaided non-minority
professional colleges only on the basis of marks secured in c
the common entrance test to a demand by the State of a
"quota" of seats by the State for imposition of reservations or
for that matter any other purpose. Further, given the issues
faced by Army personnel, it was submitted that a larger public
interest is involved in the armed forces personnel having
0
comfort and security that their wards can get a fair opportunity
for securing admissions into professional colleges.
27. The learned Senior Counsel, Mr. Jaideep Gupta
contended that the right to set up educational institutions,
whether minority or non-minority, pursuant to sub-clause (g) of E
clause (1) of Article 19, includes the right to admit students of
their choice from a "source" within the general pool, so long
as the procedure adopted is transparent, fair and non-
exploitative. As far as merit is concerned, it would then be that
so long as inter se merit within that "source" is concerned, the F
State ought not to have the power to insist that as far as non-
minority educational institutions only select students from the
entire general pool on the basis of marks secured on the
common entrance test. He also contended that the admission
policy of ACMS, in choosing to admit eligible wards of Army G
personnel in all of its seats, is an instance of selecting a
"source" and not a reservation at all. To this extent he also
submitted that where a particular class is a source of
admission, the principles relating to reservations would not
apply to the same where, the class itself is well defined and H
644 SUPREME COURT REPORTS [2011] 6 S.C.R.
A rational. The learned Senior Counsel, Mr. Jaideep Gupta
submitted that this Court in P.A. lnamdar, interpreting TMA Pai,
has held that the essential ingredients of freedom of
management of private non-minority unaided educational
institutions include the right to admit students and recruit staff,
B and determine the quantum of fee to be charged, and that they
cannot be regulated, either with respect to minority or non-
minority educational institutions. In addition he also submitted
that Clause (5) of Article 15, inserted by the 93rd Constitutional
(Amendment) Act, 2005, in so far that it enables special
c provisions by the State with respect to admission of Scheduled
Castes, Scheduled Tribes and Socially and Educationally
Backward Classes in private non-minority unaided institutions,
would be unconstitutional and violative of the basic structure of
the Constitution. In particular he relied on the sole opinion of
D Bhandari J., in Ashoka Kumar Thakur v. Union of lndia 6 that
enabling provisions of clause (5) of Article 15, in so far as they
relate to private non-minority unaided educational institutions,
to be violative of basic structure of the Constitution, and argued
that we adopt the same rationale anci conclusions.
E IV
28. Based on the iacts, the decision of the High Court, the
applicable laws, the affidavits of the Medical Council of India
& Government of Delhi and the submissions made before us
F by the Counsel appearing for the parties, we now turn to frame
the questions to be answered. It would appear that there are
two sets of issues that need to be addressed. The first would
be a preliminary set of issues, wherein the question of whether
ACMS is an instrumentality of the State or an aided institution
G or an unaided institution would have to be answered, so that
we could then determine which laws would be applicable. As
argued by the learned Counsel for Appellants, the Delhi Act 80
of 2007 would be applicable with respect to the matters on
hand, if ACMS is an unaided non-minority educational
H 8. c2008) a sec 1.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 645
& ORS. [B.SUDERSHAN REDDY, J.]
institution. If that be the status of ACMS, then we'd have to next A
consider whether the exemptions granted by the Delhi
Government are valid.
29. It is also noted that at no stage of the proceedings,
whether before the High Court or in this court, have the
8
Respondents challenged the constitutional validity of Delhi Act
80 of 2007, and specifically the allocations and reservations
as mandated by Section 12 therein. The said Act was enacted,
after the 93rd Constitutional (Amendment) Act, 2005 inserted
clause (5) of Article 15 into the Constitution. Both the Title and C
the Preamble of Delhi Act 80 of 2007 specifically state that it
was an Act to ensure equity for Scheduled Caste, Scheduled
Tribes and other weaker segments Of the populat[on.
Consequently, ·clause (5) of Article 15's enabling provisions with
respect to making "special provisions" in regard to admission
of Scheduled. Castes, Scheduled Tribes, and Socially and D
Educationally 'Backward Classes to private unaided non-
minority educational institutions would extend a protective
umbrella with regard to allocations and reservations in Section
12 of Delhi Act 80 of 2007. If we find below that it is Delhi Act
80 of 2007 which is applicable, and further find that the E
exemptions granted by Delhi Government to be invalid, then
provisions of Delhi Act 80 of 2007 with respect to reservations
would have to apply with the full force that they were intended
to be.
F
30. Only thereafter, would it be logical to proceed to
examine whether the interpretations urged by the Appellants,
or the Respondents, with regard to decisions of this Court in
TMA Pai, P.A. lnamdar, and Islamic Academy, that would apply
with respect to seats that are unaffected by reservations G
specified in sub-section (2) of Section 12 and allocation of
seats, as between Delhi and non-Delhi students, specified in
sub-section (1) of Section 12 of the said Act. It is to be noted
that the said Act specifically mandates that all admissions to
ACMS would have to be made in accordance with merit of
H
646 SUPREME COURT REPORTS [2011] 6 S.C.R.
A students, based on marks secured in the common entrance
test. With respect to those students covered by various
categories such as Scheduled Castes, Scheduled Tribes and
other constitutionally permissible classes, as delineated in Sub-
section (2) of Section 12, and as applicable with respect to
B categories described in Sub-section (1) of Section 12, the rule
of inter-se merit, based on marks secured in common entrance
test by students falling into each category, would apply. That
would also mean, then, that with respect to seats not covered
by provisions of Sub-section (2) of Section 12, they would have
c to be filled in accordance with rule of merit based on marks
secured by general category of students not covered by Sub-
section (2) of Section 12. If however, the interpretation of the
ratio of decision by this Court in TMA Pai, as further explained
in P.A. lnamdar pressed by the learned Senior Counsel
D appearing for the Respondents turns out to be the correct one,
then we would have to hold that ACMS has the right to fill all of
the seats in ACMS not covered by sub-section (2) of Section
12 with wards of Army personnel who have qualified in the
appropriate common entrance test.
E 31. In light of the above, we frame the following specific
questions:
Preliminary:
1. Is ACMS an instrumentality of the State or an aided
F institution?
2. If the answer to Question 1 above is no, then
whether the exemptions granted by Delhi
Government are valid?
G
Substantial:
3. If the answers to both questions 1 and 2 above are
no, whether ACMS can admit only wards of Army
personnel to the seats not covered by reservations
H mandated by Delhi Act 80 of 2007, without any
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 647
& ORS. [B.SUDERSHAN REDDY, J.]
regard to the merit of other Delhi or non-Delhi A
students who may have secured higher marks in the
appropriate common entrance test?
v
Analysis B
Preliminarv Questions:
Question 1:
32. Is ACMS an instrumentality of the State or an aided C
institution?
We note that with respect to the issues of whether ACMS
is an instrumentality of the State, and whether ACMS is an
aided or unaided institution, that at both stages of proceedings D
in the High Court, the conclusion reached was that
Respondents were neither an instrumentality of the State, nor
could ACMS be held to be an aided educational institution.
Such determinations always present issues of fact and of law.
Vv"e are disinclined to over-rule the findings of the High Court E
in this regard, which also corresponds to the decisions of the
learned Single Judge. We are also disinclined to go into the
said issues primarily because we do not believe that the fact
that ACMS is deemed to be an unaided non-minority
educational institution would have a bearing on the relief being F
sought by the Appellants.
33. In this light, we also opine that the Division Bench was
correct in holding that Ordinance 30 of GGSIU to be
inapplicable in this case on account of enactment of Delhi Act
80 of 2007. This is so, because Delhi Act 80 of 2007 is a later G
enactment, much more general, containing a complete code
covering the entire terrain of admissions of students to
professional unaided non-minority institutions affiliated to all
universities in NCT of Delhi, including GGSIU, with specific
provisions therein regarding allocation of seats between Delhi H
648 SUPREME COURT REPORTS [2011) 6 S.C.R.
A and non-Delhi students, and reservations applicable in terms
of those students falling within constitutionally permissible
classes. However, the expression used by the Division Bench,
that Ordinance 30 has "lost its relevance": to the extent that it
may suggest a loss of general relevance is not correct.
B Considerable care ought to be exercised in delineating the
applicability of unrepealed sections of a previous statute, even
if they conflict with the provisions of a later statute with respect
to some specific terrain of activities. After all, Ordinance 30 of
GGSIU may be applicable with respect to many other situations,
c not involving the terrain covered by Delhi Act 80 of 2007. In this
regard it would be appropriate to cite the words of Mudholkar
J., judgment in Municipal Council, Palai v. T.J. Joseph 9 :
"It is undoubtedly true that the legislature can exercise
the power of repeal by implication. But it is equally we/1-
D settled that there is a presumption against an implied
repeal. Upon the assumption that the legislation enacts
laws with complete knowledge of all existing laws
pertaining to the same subject the failure to add a
repealing clause indicates that the intent was not to
E repeal existing legislation. This presumption will be
rebuffed if the provisions of the new Act are so
inconsistent with the old ones that the two cannot stand
tegether."
F Question 2:
34. In light of the fact that we have decided to proceed on
the basis that ACMS is a private non-minority unaided
professional institution, we now turn to the issue of the validity
of the exemptions granted by Delhi Government from the
G operation of Delhi Act 80 of 2007. By permitting ACMS to
allocate all its seats to wards of Army personnel, albeit ones
who had taken and qualified the common entrance test, the
Delhi Government effectively suspended the operation of the
H 9. 1963 AIR 1561 = (1964) 2 SCR 87.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 649
& ORS. [B.SUDERSHAN REDDY, J.]
provisions of the Act with regard to selection of students solely A
on merit from the general category, and also the pro:visions that
mandated allotment and reservation of seats to various
constitutionally permissible classes, including but not limited to
Scheduled Classes and Scheduled Tribes.
B
35. At the very beginning of this portion of this judgment,
we wish to make an observation based on the text of both the
Cabinet Decision, and the Notification of Government of Delhi,
on which reliance is placed by ACMS and AWES to admit only
students of Army personnel. The texts state that an approval
was being granted, in the case of Cabinet Decision, and that C
permission was being granted, in the case of the Notifications,
that hundred percent seats in ACMS may be allocated for
"admission towards of Army personnel" as per/ the policy
"followed by" the Indian Army. First question that 'arises is as
to how wards of Army personnel could be deemed to be "Army D
personnel"? Did ACMS and AWES apply for permission of
admittance of personnel of the Indian Army and then turn around
and use the exemption granted to admit "wards of Army
personnel"? Or is it the case that the Government of Delhi did
not apply its mind at all, or that applied its mind in the absence E
of relevant facts? We are perturbed by the degree of
casualness, evident from above, with which exemptions from
the operation of vital aspects of a law enacted by the legislature
seemed to have been undertaken. In any event, we will proceed
on the assumption that the Government of Delhi intended that F
the exemption be granted with respect to "wards of Army
personnel" as opposed to "Army personnel" and examine
whether the exemptions granted are valid or not.
36. We find that the High Court has erred in its G
interpretation of Sub-section (1) of Section 12, and indeed the
very thrust of Delhi Act 80 of 2007. One of the cardinal
principles of interpretation is to look for the purpose that the
Act seeks to achieve, and in this regard what is also crucial is
the relationship of each clause or sub-clause to the,other. The H
650 SUPREME COURT REPORTS [2011) 6 S.C.R.
A strict lexicographical arrangement of sub-clauses, one after the
other, ought not to be taken to mean that the one following is
of lesser importance.
37. Reading Section 12 of Delhi Act of 2007 synoptically,
we find that Sub-section (2) of Section 12 pervades the entire
8
space of how seats are to be allocated. In fact, the preamble
to the Act, states that it is being enacted to provide for
"allotment" of seats to "Scheduled Castes, Scheduled Tribes
. . .. . ... and other measures to ensure equity and excellence
in professional education in the National Capital Territory of
C Delhi" (emph. Supp.). Consequently, it must be read that sub-
section (2) of Section 12 is one of the primary sections of the
Act and that it would act upon the provisions of Sub-section (1)
of Section 12. Sub-section (2) of Section 12 provides that with
respect to seats in sub-section (1) of Section 12, an institution
D shall reserve as provided for in sub-sections (a), (b) and (c) of
sub-section (2) of Section 12 that follow. Clearly the phrase "[l]n
the seats mentioned in sub-section (1)" at the beginning of sub-
section (2) of Section 12 reveals the intent of the legislature that
the specific reservations provided for Scheduled Castes and
E Scheduled Tribes and other provisions that may be made with
respect to other weaker segments and other permissible
categories of classes, shall be applied with respect to each and
every category of seats identified in sub-section (1) of Section
12. Looking at sub-section (2) of Section 12 closely, this would
F mean that not only are reservation of seats, for instance with
respect to Scheduled Castes and Scheduled Tribes, to be
made with respect to Delhi students, non-Delhi students, and
also with respect to all students admitted under the
management quota.
G
38. Instead of appreciating the primordial importance of
sub-section (2) of Section 12 of the Delhi Act 80 of 2007, the
Division Bench finds that there is "nothing in Section 12 of the
Delhi Act 80 of 2007 which prohibits the appellants from
making 100% allocation in favour of army/ex-army personnel
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 651
& ORS. [B.SUDERSHAN REDDY, J.]
and war widows". If indeed that be so, and ACMS admits all A
wards of army personnel from outside Delhi, then what exactly
is the status of reservations that have been specifically
mandated in sub-section (2) of Section 12 of the Act by the
legislature of NCT of Delhi with respect to Scheduled Castes
and Scheduled Tribes and any other Backward Classes and B
other constitutionally permissible classes? Logically in
accordance with the interpretation of the Division Bench, the
benefits intended to be provided to students belonging to
various weaker segments and thereby achieve greater social
welfare through achievement of broader goals of social justice c
by the legislature would be obliterated. This would be
tantamount to grant of powers to set at nought a poliCJ
specifically enacted by the legislature, thereby turning on its .
head, as it were, every known principle of our constitutional law.
39. Furthermore, by permitting ACMS to admit only D
students of wards of army personnel, notwithstanding the fact
there could be others who have taken the common entrance
test, and have secured more marks than the wards of Army
personnel, the exemptions granted by Delhi Government also
set at naught the legislative intent to ensure excellence by E
mandating that all admissions be made on the basis of inter-
se merit within each of the categories of students. The general
category would comprise of all students who have taken the
common entrance test, and other wise satisfy the conditions of
sub-section (1) of Section 12 of the Delhi Act 80 of 2007, after F
the seats reserved pursuant to sub-section (2) of Section 12
are reserved i.e., allocated for the described constitutionally
permissible categories therein. The said Act clearly specifies
that its objective is to achieve excellence, and one of the
methods specified to achieve the same is of admitting students G
on the basis of inter-se merit in each of the categories specified
in Section 12. The grant of permission to ACMS to admit
students who may have scored lower marks than others, both
within the general category and also in the reserved categories,
results in defeat of the aims, objects and purposes of the Act, H
652 SUPREME COURT REPORTS [2011] 6 S.C.R.
A and the entire fabric and scheme of the Act gets frustrated.
Nowhere in the Act do we find any powers granted to the
government to not implement the Act. Nor does the Act state
anywhere that the Government of Delhi could suspend the
implementation of the provisions with respect to reservations
B for weaker segments, and also simultaneously give the merit
of the students scoring higher marks than wards of Army
personnel a go by. To put it pithily, there is no power conferred
on Government of Delhi to grant any exemption in favour of any
institution from the operation of any of the provisions of the Act.
c 40. The Government of Delhi in its affidavit claims that its
powers to provide such exemptions also flow from Article 162
of the Constitution. In relevant part Article 162 states "[S]ubject
to the provisions of this Constitution the executive power of a
State shall extend to the matters to which the Legislature of the
D State has power to make law." We simply fail to see how a
Government that claims to be functioning in accordance with
the Constitution of India, in which democracy has been deemed
to be a basic feature of the Constitution, can claim the power
under Article 162 to set at nought a declared, specified and
E mandated policy legislated by the legislature. In a constitutional
democracy, with a parliamentary form of government, the
executive may initiate a policy in a legislative bill to be enacted
by the legislature or in the absence of legislative action in a
particular field, enact policy that may be akin to law. However,
F the executive has to be answerable to the legislature. That is
why it has been stated in no uncertain terms, that while we do
not follow a strict separation of powers as in the United States,
executive functions have been deemed to be what remain after
legislative and judicial function have been taken away. (See
G Ram Jawaya Kapur v. State of Punjab 10 ) Further, the c1ted
portion of Article 162 has been interpreted by this Court to
mean that the State Executive has the power to make any
regulation or order which shall have the effect of law so long
as it does not contravene any legislation by the State
H 10. AIR 1955 SC 549: (1955) 2 SCR 225.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 653
& ORS. [B.SUDERSHAN REDDY, J.]
Legislature already covering the field. (See State of A.P. v. A
Lavu11 ) In the instant case, the legislature of NCT of Delhi has
specifically set out a clear policy with respect to reservations
for Scheduled Castes and Scheduled Tribes and other weaker
sections of the population. The duty of the executive is to
implement that policy, and not to abrogate it. B
41. The Government of Delhi also seeks to claim
legitimacy of the decision by the Cabinet of Delhi and the
Notification by Lieutenant Governor granting ACMS permission
to admit 100% of the seats to wards of army personnel to the
text of sub-section (b) of sub-section (1) of Section 12. The C
interpretation of the said sub-section sought to be pressed upon
us is as follows: That the first part of said sub-section ought to
be read as "eighty five percent of the total seats except the
management seats, shall be allocated for Delhi students and
the remaining 15% percent of seats for outside Delhi students", D
followed by an "or", and then the second part "such other
allocation as the Government by notification in the Official
Gazette Direct". Such an interpretation it is claimed gives the
government the power to vary the entire allocation of seats, and
therefore the exemption granted by it to ACMS to admit only E
wards of Army personnel ought to be upheld.
42. We simply fail to see how. At bes!,_even if we were to
accept, arguendo, the interpretation pressed into service by the
Government of Delhi, the best result that would follow would be F
that Government of Delhi has been given the power to vary the
allocation of seats between Deln'i and non-Delhi students,
belonging to all sections and within the broadest class of those
who have taken the common entrance test and qualified. It
cannot be read to mean that a power has been granted to G
Government of Delhi to create entire new classes of students
from within those eligible for admission to professional
institutions by itself, and exclude all those students who are not
members of such classes, notwithstanding that they may fall in
11. (1971) 1 sec 607. H
654 SUPREME COURT REPORTS (2011] 6 S.C.R.
A the categories of Delhi or non- Delhi students.
43. Further, we also hold that such an interpretation to be
strained. This is so for two reasons. One, the fact that the word
"and" is always used as a conjunction between the first part of
8 a sentence and the second part of a sentence, and the word
"or" is used to denote an alternative in a series of exclusive
arrangements. Consequently, we hold that the correct
interpretation of sub-section (b) of Section 12(1) is as follows:
first part - "Eighty five percent of the total seats except the
management seats, shall be allocated for Delhi students"
C followed by the conjunction "and" and then
, the second part - "the
remaining fifteen percent seats for outside Delhi students or
such other allocation as the Government may by notification in
Official Gazette direct." Therefore, it can only mean that the
powers of Delhi Government are limited to the extent of varying
D the percentage of seats reserved for non-Delhi students, up to
a maximum of 15%. Apart from the above grammatical
construction, we are led to such an understanding for additional
reasons. This is the legislature of Delhi, that is legislating for
the denizens of NCT of Delhi, with a primary responsibility for
E their welfare. Further, in as much as clause (a) of sub-section
(2) of Section 12 provides that 17% of seats be reserved for
Scheduled Castes, 1% of seats be reserved for Scheduled
Tribes, and an unspecified percentage of seats be reserved
for other Backward classes who are also denizens of Delhi, the
F legislature of Delhi would have taken into account the needs
of Scheduled Castes and Scheduled Tribes in Delhi. The
discretion to vary the 15% reserved for non-Delhi citizens was
in all likelihood to enable the Government of Delhi to increase
the percentage of seats allocated to denizens of Delhi, in the
G event a sizeable number of other backward classes of students
also need to be accommodated in the professional colleges
of Delhi. By fixing a number, 15%, for non-Delhi students, the
legislature intended to set a maximal limit on the number of non-
Delh i students who could be admitted, and specified the
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 655
& ORS. [B.SUDERSHAN REDDY, J.]
percentage of seats that could be allocated to Scheduled A
Castes, Scheduled Tribes and other weaker sections which
could be reduced in the event that Government of Delhi needed
to accommodate the special exigencies of the needs of
denizens of Delhi, including but not limited to its backward
classes. B
44. The Government of Delhi has also claimed that a
distinction needs to be drawn between "allocation" as used in
sub-section (1) of Section 12 and "reservation" as used in sub-
section (2) of Section 12. The claim of Government of Delhi is C
that the power to "allocate" between Delhi and non-Delhi
students or some other classes is prior to "reservation" of seats
as between general category of students, and moreover that
such an allocation would mean a power to allocate all the seats
not just to non-Delhi students, but even an entirely new class. D I
This plea of Government of Delhi is untenable and
unsustainable as the same is not supported by any of the
provisions of the Delhi Act 80 of 2007 and in fact runs counter .
to them. One of primary purposes of the act, the goal that it
seeks to achieve, is described in terms of "allotment" of seats
to Scheduled Castes, Scheduled Tribes and other weaker E
segments. The word allot, in its verb form, is defined by the
Concise Oxford Dictionary 12 to include the meaning of the act
to give or apportion to, distribute officially to. Allotment is what
results from such an act i.e., an apportionment. The word
"reserve" is defined to also include the meaning of "order to be F
specifically retained or allocated for a particular person", and
the word "reservation" is the act or an instance of reserving or
being reserved. The word "allocate" is defined to include the
meanings of an act to assign or devote something for a purpose
or to a person. Consequently, it can only be surmised that while G
the words allocation was used in the said Act in the context of
apportionment of seats between Delhi and non-Delhi students,
the word "reservation" was used to mean to allocate a certain
percentage of seats, in both groups formed by eligible Delhi
12. Eight Edition, Oxford University Press (1990). H
656 SUPREME COURT REPORTS [20111 6 S.C.R.
A and non-Delhi students, for Scheduled Castes, and Scheduled
Tribes and other weaker sections of the population and other
constitutionally permissible classes. The use of those two
words, allocation and reservation in Section 12, in as much as
they overlap in their meaning, and the fact that they together
B delineate the seats to be allotted to Scheduled Castes and
Scheduled Tribes and other weaker sections and
constitutionally permissible classes, implies that we cannot infer
from the use of the word "allotment" in sub-section (1) of Section
12, the kind of power claimed to vary allotment in clause (b) of
c sub-section (1) of Section 12 as provided therein and thereby
also set at naught the intent of legislature of Delhi to allot seats
for Scheduled Castes, Scheduled tribes, and other weaker
sections, and further, also set at naught its intent that at least
85% of seats that remain after 10% of management seats are
D set aside, be allocated to students of Delhi, also be set at
naught. Consequently, the defense by Government of Delhi of
the exemptions it granted to ACMS, on the use of different
words, allotment in sub-section (1) of Section 12, and
reservations in sub-section (2) of Section 12, also fails.
E 45. Thus we find that the exemption granted by the
Government of Delhi allowing ACMS to fill 100% of its seats
by wards of army personnel violates the basic principles of
democratic governance, of the constitutional requirement that
eicecutive implement the specific and mandatory policy
F legislated by the legislature, and violates the provisions of Delhi
Act 80 of 2007. In fact, the actions of the Government of Delhi,
for the aforesaid reasons are wholly arbitrary, without any basis
in law, and ultra vires. Section 14 of the said Act specifies that
any admission made in contravention of the provisions of the
G Act or the rules made thereunder, shall be void, and further
Section 18 provides that those making admissions in
contravention of the provisions of Delhi Act 80 of 2007 may be
punished by imprisonment up to three years or a fine up to
Rupees one Crore or both. Such provisions clearly demonstrate
H the intent of the legislature that its policy, as specified in the
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 657
& ORS. [B.SUDERSHAN REDDY, J.]
Act, and the purposes of the Act, not be derogated from in any A
manner. The said provisions of the Act are mandatory in
nature. The Government of Delhi has clearly acted on the basis
of a misplaced belief of its powers, under the Act, a
misunderstanding of the statutory language of the Act, and its
relevant provisions, and also in complete contravention of B
constitutional principles.
46. In light of the above, we have to hold that Delhi Act 80
of 2007, and Section 12, including both sub-sections (1) and
(2) are clearly applicable, with respect to admission of students C
to ACMS.
VI
Substantive Questions:
Question 3: D
47. Whether ACMS can admit only wards of Army
personnel to the seats not covered by reservations mandated
by Delhi Act 80 of 2007, without any regard to the merit of other
Delhi or non-Delhi students who may have secured higher E
marks in common entrance test?
48. Having resolved the preliminary issues in Part V
above, we now turn our attention to the issue of whether ACMS
has an unfettered right to define its own source of students with F
respect to all the seats remaining after setting aside the seats
for categories of students covered by sub-section (2) of Section
12, read with sub-section (1) of Section 12 of the Act.
49. The main contentions of learned Senior Counsel, Mr.
K.K. Venugopal and Mr. Jaideep Gupta, have been that the G
ratio of TMA Pai, as explained in P.A. lnamdar, stands for the
propositions that (a) the rights of non-minority unaided
educational institutions under sub-clause (g) of Clause (1) of
Article 19 are exactly the same as the rights of minority unaided
educational institutions under Clause (1) of Article 30; and H
658 SUPREME COURT REPORTS [2011] 6 S.C.R.
A hence (b) non-minority professional educational institutions,
such as ACMS, should be deemed to have the right to define
their own "source" from within the general pool of students
taking the common entrance test, so long as the classification
is not based on any of the constitutionally impermissible basis'
B such as religion, race, caste, place of birth or sex. Further, it
was also contended that in as much as the admission policy
thereafter proceeds in a transparent, fair and non-exploitative
manner, the admission policy of ACMS should be upheld.
Additionally it was also submitted by the learned Senior
c Counsel that allowing ACMS to pursue such an admission
policy would be in the national interest.
50. At this stage we wish to make a necessary and a
primordially important observation that has troubled us right
throughout this case. The primordial premise of the arguments
D by unaided educational institutions in claiming an ability to
choose students of their own choice, in case after case before
this court, was on the ground that imposition of reservations by
the State would impede their right to choose the most
meritorious on the basis of marks secured in an objective test.
E It would appear that, having unhorsed the right of the State to
impose reservations in favor of deprived segments of the
population, even though such reservations would be necessary
to achieve the Constitutionally mandated goals of social justice
and an egalitarian order, unaided institutions are now seeking
F to determine their own delimited "sources" of students to the
exclusion of everybody else. The fine distinctions made by
learned Senior Counsel, Mr. Jaideep Gupta, that an allocation
when made by the State is reservation, as opposed to
allocations made by private educational institutions in selecting
G a source do not relate to the fundamental issue here: when the
state delimits, and excludes some students who have secured
more marks, to achieve goals of national importance, is sought
to be projected as contrary to Constitutional values, and
impermissibly reducing national welfare by allowing those with
H lesser marks to be selected into professional colleges; and at
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 659
& ORS. [B.SUDERSHAN REDDY, J.]
· the same time, such a delimitation by a private educational A
institution, is supposedly permissible under our Constitution,
and we are not then to ask what happens to that very same
national interest and welfare in selecting only those students
who have secured the highest marks in a common entrance
test. We are reminded of the story of the camel that sought to B
protect itself from the desert cold, and just wanted to poke its
head into the tent. It appears that the camel is now ready to
fully enter the tent, in the desert, and kick the original inhabitant
out altogether.
51. In any case we examine these propositions below, as
c
we are unable to convince ourselves that this Court would have
advocated such an illogical position, particularly given our
history of exclusion of people, on various invidious grounds,
from portals of education and knowledge. Surely, in as much
as this Constitution has been brought into force, as a D
constitutive document of this nation, on the promise of justice
- social, economic and political, and equality - of status and
opportunity, for all citizens so that they could live with dignity
and fraternal relations amongst groups of them, it would be
surprising that this Court would have unhorsed the State to E
exclude anyone even though it would lead to greater social
good, because marks secured in an entrance test were
sacrosanct, and yet give the right to non-minority private
educational institutions to do the same. The knots of legal
formalism, and abandonment of the values that the Constitution F
seeks to protect, may lead to such a result We cannot believe
that this Court would have arrived at such an interpretation of
our Constitution, and in fact below we find that it has not.
52. It would appear that both learned Senior Counsel, Mr. G
K.K. Venugopal and Mr. Jaideep Gupta are relying on
paragraphs 127 and 137 in P.A. lnamdar to substantiate their
claim that all that is needed by ACMS is to ensure that their
admission procedures are fair, transparent and non-
exploitative. Mr. K.K. Venugopal submits that there can be a
H
660 SUPREME COURT REPORTS [2011] 6 S.C.R.
A consensual agreement between the State and the private
unaided institution, regarding seat sharing, but the State cannot
unilaterally demand any such share. Further, Mr. Jaideep Gupta
claims that by admitting only students who are wards of army
personnel, on an all India basis, what ACMS is actually doing
B is only defining a "source" of students and not reserving any
seats.
53. We cite some additional paragraphs, including the
paragraphs relied on by learned Senior Counsel from the
judgment of this Court in P.A. lnamdar to test the above
C propositions. In particular we cite below paras 127, 136, 137
and 138: in extenso (and emph. supp in cited paragraphs):
"127. Nowhere in Pai Foundation either in the majority or
the minority opinion, have we found any justification for
D imposing seat sharing quota by the State on unaided
private professional educational institutions and
reservation of the State, or State quota seats or
management seats.
136. "Whether minority or no.1-minority institutions, there
E
may be more than one similarly situated institution
imparting education in any one discipline, in any State. The
same aspirant seeking admission to take education in any
one discipline of education shall have to purchase
admission forms from several institutions and appear at
F several admission tests conducted at different places on
the same or different dates and ther may be clash of dates,
If the same candidate is required to appear in several
tests, he would be subjected to unnecessary and avoidable
expenditure and inconvenience. There is nothing wrong in
G an entrance test being held for one group of institutions
imparting same or similar education. Such institutions
situated in one State or in more than one State may join
together and hold a common entrance test or the State
may itself or through an agency arrange for holding of such
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 661
& ORS. [B.SUDERSHAN REDDY, J.]
test. Out of such common merit list the successful A
candidates can be identified and chosen for being allotted
to different institutions depending on the courses of study
offered, and number of seats, the kind of minority to which
the institution belongs and other relevant factors. Such an
. agency conducting the common entrance test ("CET" for 8
short) must be one enjoying utmost credibility and
expertise in the matter. This would better ensure the
fulfillment of twin objects of transparency and merit. CET
is necessary in the interest of achieving the said objectives
and also for saving the student community from harassment ·c
and exploitation. Holding of such common entrance test
followed by centralized counseling or, in other words, single
window system regulating admissions does not cause any
dent in the right of the minority unaided educational
institutions tq admit students of their choice. Such choice D
can be exercised from out of the list of successful
candidates prepared at CET without altering the order of
merit inter-se of the students so chosen."
137. Pai Foundation has held that minority unaided
institutions can legitimately claim unfettered fundamental E
right to choose the students to be allowed admission and
. the procedure therefore subject to its being fair. transparent
and non-exploitative. The same principle applies to non-
minority unaided institutions. There may be a single
institution imparting a particular type of education which is F
not being imparted by any other institutions and having its
own admission procedure fulfilling the test of being fair,
transparent and non-exploitative. All institutions imparting
same or similar professional education can join together
for holding a common entrance test satisfying the above G
said triple tests. The State can also provide a procedure
of holding a common entrance test in the interest of
securing fair and merit based admissions and preventing
maladministration. The admission procedure so adopted
by a private institution or group of institutions, if it fails to H
662 SUPREME COURT REPORTS [2011] 6 S.C.R.
A satisfy all or any of the triple tests, indicated hereinabove,
can be taken over by the State substituting its own
procedure. The second question is answered accordingly.
138. It needs to be specifically stated that having regard
to the larger interest and welfare of the student community
B
to promote merit, achieve excellence and curb
malpractices, it would be permissible to regulate
admissions by providing a centralized and single-window
procedure. Such a procedure to a large extent, can
secure grant of merit based admissions on a transparent
c basis. Till regulations are framed, the Admission
Committee can oversee admissions so as to ensure that
merit is not the casualty."
54. By examining paragraphs 127 and 137 in the larger
D context of paragraphs 135, 137 and 138, it would appear that
this Court's emphasis was on the right of private educational
institutions to admit students on the basis of "merit" as
determined by marks secured in an entrance test. To this extent,
the above paragraphs would stand for the proposition that both
E minority and non-minority unaided institutions have the right to
admit students who have secured higher marks in the entrance
test, and not an equivalence between minority and non-minority
institutions to engraft their own "sources" or "classes" of students
from within the general pool. The rights of minority unaided
F educational institutions to select students, based on merit, is
with respect to students who belong to that same minority. It is
not a right to define a source as such. We turn to excavate the
rights of minority unaided educational institutions, and non-
minority unaided educational institutions in the larger body of
G judgment P.A. lnamdar to get a more synoptic understanding
of the ratio in that judgment.
55. In paragraph 124 of P.A. lnamdar it is stated that the
majority did not "see much of a difference between non-minority
and minority unaided educational institutions". That expression
H "much of a difference" gives the clue that there is an actual
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 663
& ORS. [B.SUDERSHAN REDDY, J.]
difference between the rights of minority unaided institutions A
under clause (1) of Article 30, and the rights of non-minority
unaided institutions under sub~clause (g) of Clause (1) of Article
19. We will address that issue a little later by gleaning the
differences between minority and non-minority institutions
enunciated in P.A. lnamdar. By using the expression "much of 8
a difference" the Court did not mean a complete absence of
difference. If the expression, by itself, were taken out of context,
it could be understood in two ways: (i) that there is not much of
a difference in terms, between the two kinds of institutions
under consideration, based on an overall quantitative
assessment of all the rights· put together, with a few differences C
that would still have operational significance; or that (ii) in all
respects the two classes of educational institutions are more
or less the same, with the differences being minor and not
leading to any operational significance. We hold that it is in the
former sense that the said expression was used. By noticing 0
the phrase "much of a difference" out of context it might appear
that this Court surmised that there were no substantive
differences as such, in terms of operational significance as to
the groups from which the non-minority and minority unaided
educational institutions could select students from, notice of the E
context, the specific issue that the Court was dealing at that
point in the judgment, leads to a different conclusion. The issue
that the Court was dealing with was with respect to whether the
State could compel unaided educational institutions to choose
students with lesser percentage of marks in order to implement F
its reservation policies. The last sentence of para 124 clarifies
this: "The State cannot insist on private educational institutions
which receive no aid from the State to implement the State's
policy on reservation for granting admission on lesser
percentage of marks i.e., on any criterion except merit." Minority G
institutions have to choose from their own minority group who
are otherwise qualified, and non-minority institutions have to
choose from the entire group who are otherwise qualified. The
modality of choosing within those groups has to be on the basis
of inter-se ranking determined in accordance with marks H
664 SUPREME COURT REPORTS [2011) 6 S.C.R.
A secured in the common entrance test. When we look at the
following paragraph, no. 125 in P.A. lnamdar, it might also
appear that the State is not entitled to impose a state quota,
whereby the private unaided institutions are compelled to give
up a share of available seats to the candidates chosen by the
8 State, as if it was filling lhe seats available to be filled up at its
discretion in such private institutions. This Court made the
observation that s4cn an act, of imposition of a quota, would
be an encroachment on the freedoms granted pursuant to
Article 30(1) to minority institutions, and an unreasonable
C restriction under Article 19(1 )(g) read with Article 19(6) when
imposed on non-minority educational institutions. The Court was
not suggesting that insistence, by the State, on making merit
based selections within the groups, general category for the
non-minority institutions, and the specific minority group to
which the minority educational institution belonged, from which
D the two kinds of institutions were expected to select students
from, amounts to an imposition of a State quota. The context
of the discussion was of imposition of reservations on private
•
unaided non-minority educational institutions. This is borne out
by the last sentence in paragraph 125, where it is stated
E "[M]erely 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
F meritorious candidates."
56. The jurisprudence of TMA Pai with respect to unaided
non-minority educational institutions, as explained by P.A.
lnamdar, clearly seems to be that private unaided educational
G institutions seek to provide better professional education, and
hence they should not be saddled with less meritorious
students, i.e., those who get lesser marks in a qualifying
examination such as a common entrance test, by imposition
of reservations. With respect to minority educational institutions,
H the imposition of reservations or the imposition of the duty to
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 665
& ORS. [B.SUDERSHAN REDDY, J.]
select non-minorities beyond a sprinkling would be an A
encroachment of freedom guaranteed by clause (1) of Article
30. With respect to non-minority unaided institutions, imposition
of reservations was deemed to be an unreasonable restriction
on the freedom to engage in the occupation of "education"
pursuant to sub-clause (g) of clause (1) of Article 19. In as much B
as Clause (5) of Article 15 is now part of the Constitution,
reservations by the State for "socially and educationally
backward classes" without the creamy layer, and for Schedule.d'
Castes and Scheduled Tribes are now constitutionally
permissible categories of state imposition on non-minority c
educational institutions. The status of constitutional
permissibility removes the basis for finding reserwtions to be
an unreasonable restriction in the freedom to select students
only on the basis of merit with respect to all the,.4eats in a non-
minority unaided educational institution. Consequently, the 0
unaided non-minority educational institutions would have to
comply with the State mandated reservations, selecting
students within the specified reservation categories on the
basis of inter-se merit. The question then is whether with
respect to the remaining seats, can the state insist that non-
minority private unaided institutions .select the most meritorious E
students, as determined by the marks secured in the qualifying
test? The answer to that question is in the affirmative. As we
have seen above that in paragraph 136 in P.A. lnamdar it was
held that a Common Entrance Test "would better ensure the
fulfillment of twin objectives of transparency and merir and F
further on in para 138, it stated again "[l]t nettds to be
specifically stated that having regard to the larger interests
and welfare of the student community to promote merit,
achieve excellence and curb malpractices, it would be
permissible to regulate admission by providing a centralized G
and single window procedure. Such a procedure, can secure
grant of merit-based admissions on a transparent basis.•
57. Clearly, the continuing concern expressed by the
Seven Judge Bench in lnamdar, echoes ttie concern of this H
666 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Court in TMA Pai: the need to ensure merit, as determined by
the marks secured on the qualifying exam, is taken care of and
thereby achieve academic excellence. In the post clause (5)
Article 15 scenario, we are looking at all the seats that are
available in the non-reserved category. Those seats have to be
B filled by non-minority institutions on the basis of merit of
students, i.e., ranking determined in accordance with marks
secured, in the general category, comprising of the entire set
of students who have taken the qualifying examination and
secured the minimal marks.
c
58. It should be clear from the above that simply taking a
few stray sentences from here and there in P.A. lnamdar and
asserting from those sentences a ratio or a categorical holding
would be an incorrect appreciation and leads to an inaccurate
assessment of what this Court actually said and meant. The
0
judgments of this Court in TMA Pai, Islamic Academy and in
P.A. lnamdar are long, dealing with extremely complex issues
of law and fact, and diverse zones of similarities and
dissimilarities between the various types of educational
institutions being considered, both by the ownership structure
E - such as minority or non-minority, and aided or unaided -, as
well as by the level of education being sought to be imparted.
On top of that the issues related to whether recognition and
affiliation was being sought or not. So, before arriving at an
applicable principle from within those huge judgments, for
F particular cases that courts deal with, it is imperative that
context of observations be closely scrutinized, and also follow
the many lines of delineation of many different ratios and
principles. To this extent the structure that this Court in P.A.
lnamdar gleaned from the judgment of this Court in TMA Pai
G provides some pathways for these complex interpretational
tasks that are imposed on courts dealing with many specific
aspects of the wider universe of facts and law considered by
this Court. And depending on the level of judicial review, the
nature of judicial review, the courts may also have to take a look
H at the wider universe of facts and laws not taken into account
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 667
& ORS. [B.SUDERSHAN REDDY, J.]
by this Court in TMA Pai, Islamic Academy and P.A. lnamdar. A
The majority of the questions dealt with in TMA Pai related to
minority institutions. In this regard, P.A. lnamdar, gleans three
kinds of minority institutions that were dealt with in TMA Pai:
(a} minority educational institutions, unaided nor seeking
recognition or affiliation; (b} minority educational institution B
asking for affiliation or recognition; and (c} minority educational
institutions receiving State aid, whether seeking recognition and
affiliation or not. To this broad classification, P.A. lnamdar finds
that TMA Pai has considered three parallel non-minority
educational institutions also: (a1} non-minority educational c
institutions, neither seeking aid nor recognition or affiliation; (b1}
non-minority educational institutions, seeking recognition or
affiliation but no aid; and (c1} non-minority educational
institutions receiving State aid, whether seeking recognition or
affiliation or not. To the matrix of parallel institutions, P.A. D
lnamdar also gleans from TMA Pai, another dimension on
which to differentiate educational institutions: by level of
education, general collegiate education, professional graduate
level education and post-graduate level of education. It is within
this labyrinthine maze that this court sought to find similarities
and differences between minority educational institutions and
E
non-minority educational institutions. Consequently, care must
be taken in interpreting P.A. lnamdar, and a few stray sentences
here and there ought not to be taken to indicate an actual
holding or ratio. In P.A. lnamdar itself, the seven judge bench
cautioned that such dependence on stray sentences would lead F
us astray. We have to delve into the foundations and the
architectural super-structure erected by P.A. lnamdar to eke out
the correct ratio applicable to the facts of the instant case.
59. In paragraph 91, of P.A. lnamdar, this Court enunciated G
one of the main holdings of TMA Pai as: "the right to establish
an educational institution, for charity or for profit, being an
occupation is protected by Article 19(1}(g}". In this regard, in
as much as the majority in the 11 judge bench in TMA Pai,
along with those who partly dissented and partly concurred, H
668 SUPREME COURT REPORTS [2011) 6 S.C.R.
A clearly held that education could be an occupation under Article
19(1)(g) only when charitable in nature, we are of the opinion,
and hold, that the observation in para 91 in P.A. lnamdar that
education can be an occupation imbued with profit motive is
not the ratio of the decision. One sentence or a phrase or an
B expression cannot be torn out of context and be characterized
as the ratio decidendi.
60. That apart, a question is raised in para 91 of P.A.
lnamdar. If the right to start and operate educational institutions
is a general right for all citizens, why did the framers of the
C Constitution have to enact Article 30(1)? It is observed in para
91 that the "reasons are too obvious to require elaboration ...... "
and that it was "intended to instill confidence in minorities
against any executive or legislative encroachment on their right
to establish and administer educational institutions of their
D choice". It is also further noted in pa,a 91 that though Article
30(1) is styled as a right, it is more in the nature of protection
for minorities. The following cited text of the opinion in paras
91, 92 and 93 from P.A. lnamdar are critical:
E "91 .......... But for Article 30, an educational institution,
even though based on religion or language, could have
been controlled or regulated by law enacted under clause
(6) of Article 19, and so, Article 30 was enacted as a
guarantee to the minorities that so far as the religious
F minorities are concerned, educational institutions of their
choice will enjoy protection from such legislation ..... The
minorities being numerically less qua non-minorities, may
not be able to protect their religion or language and such
cultural values and their educational institutions will be
protected under Article 30 at the stage of law making.
G
However, merely because Article 30(1) has been enacted
minority educational institutions do not. become immune
from the operation of regulatory measures because the
right to administer does not include the right to
maladminister.
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 669
& ORS. [B.SUDERSHAN REDDY, J.]
92. As an occupation, right to impart education is a A
fundamental right under Article 19(1 )(g), and therefore,
subject .to control by clause (6) of Article 19. This right is
available to all citizens without drawing a distinction
between minority and non-minority. Such a right is,
generctlly speaking subject to laws imposing reasonable B
restrictions in the interest of general public; In particular
laws may be enacted on the following subjects: (i) the
professional or technical qualifications necessary for
practicing any profession or carrying on any occupation,
trade or business; (ii) the carrying on by State of-any trade, c
business, industry or service whether to the exqlusion,
complete or practical of citizens or otherwise. Care is
taken of minorities, religious or linguistic, by protecting their
right to establish and administer educational institutions of
their choice under Article 30. To some extent, what may D
be permissible by way of restriction under Article 19(6)
may fall foul of Article 30. This is the additional protection
which Article 30(1) grants to the minorities.
93. The employment of expressions "right to establish and
administer" and "educational institutions of their choice" in E
Article 30(1) gives the right a very wide amplitude .
. Therefore, a minority educational institution has a right
to admit students of its own choice, it can as a matter of
its own free will admit students of non-minority
community. However, non-minority students cannot be · F
forced upon it. The only restriction on the free will of the
minority educational institutions admitting students
. belonging to a non-minority community is, as spelt out by
Article 30 itself, that the manner and number of such
admission should not be violative of the minority character G
of the institution.
94. Aid and affiliation or recognition, both by the State,
bring in some amount of regulation as a condition of
- receiving grant or recognition. The scope of such H
670 SUPREME COURT REPORTS [201~] 6 S.C.R.
A regulations, as spelt out by a six-Judge Bench decision in
Rev. Sidhajbhai case 13 and a nine-Judge Bench case in
St. Xavier's 14 must satisfy the following tests: (a) regulation
is reasonable and rational; (b) it is regulative of the
essential character of the institution and is conducive to
B making the institution an effective vehicle of education for
the minority community or other persons who resort to it;
(c) it is directed towards maintaining excellence of
education and efficiency of administration so as to prevent
it from falling in standards. These tests have met the
c approval of Pai Foundation."
61. A clear set of distinctions emerge between educational
institutions that are started and operated by minorities and non-
minorities. The level of regulation that the State can impose
under Clause (6) of Article 19 on the freedoms enjoyed
D pursuant to sub-clause (g) of Cl2·Jse (1) of Article 19 by non-
minority educational institutions would be greater than what
could be imposed on minority institutions under Article 30(1)
continuing to maintain minority status by admitting mostly
students of the minority to which the minority institution claims
E it belongs to, except for a sprinkling of non-minority students.
' The critical difference in regulation that would be higher in the
case of non-minority educational institutions is that they only
select students from the general pool, and based on merit as
determined by marks secured in qualifying examinations. The
F ability to choose from a smaller group within the general pool,
t becomes available only to those who are constitutionally
protected under Clause (1) of Article 30. Even that ability to
choose from within the smaller group is not really a right to
choose a "source". The source is given. The source can only
G be the minority to which the minority educational institution
claims it belongs to. Once the choice is exercised to be an
educational institution that serves a minority, the source itself
13. Rev. Sidhajbhai Sabhai v. State of Gujarat (1963) 3 SCR 837.
H 14. Ahmemdabad St. Xavier's College Society v. State of Gujarat (1974) 1 SCC
717.
INDIAN MEDICAL ASSOCIATION V. UNION or INDIA 671
& ORS. [B.SUDERSHAN REDDY, J.]
is given by Clause (1) of Article 30 and depends on whether A
the group claiming to be a minority is actually a minority or not,
as determined at the State level. Neither AWES nor. ACMS,
are protected by any constitutional provision that allows it to
choose to be an educational institution serving only a small
class of students from within the general pool. If indeed Army B
personnel now constitute a "Socially and Educationally
Backward Class", then under Clause (5) of Article 15, it is for
the State to determine the same, and provide by law, for
reservations of wards of Army personnel, in consonance with
the constitutional jurisprudence extant with regard to how a c
Socially and Educationally Backward Class is to be delineated,
for instance by removal of the creamy layer, and that the extent
of reservations to be provided ought not to exceed certain levels
etc. That has not happened in this instant matter. Consequently,
all of the permissible restrictions and regulations under Clause 0
(6) of Article 19 that non-minority institutions would be subject
to would also be applicable with respect to ACMS. These
regulations would also include a determination of how students
in the non-reserved category of seats, in the post 93rd
Amendment scenario, be admitted: on the basis of merit,
E
determined by marks secured on the common entrance test.
Maintenance of overall academic standards, which apparently
can be properly achieved only if high importance is placed on
admitting students on the basis of ranking determined by marks
secured in entrance tests, is necessarily a State concern, which
it may relax only in respect of those groups that it is F
constitutionally permitted to relax for. In the case of minority
educational institutions, that relaxation is on account of Clause
(1) of Article 30 provided minority educational institutions are
maintaining their minority status by admitting mostly minority
students except for a sprinkling of non-minorities; and with G
respect to non-minority educational institutions, only with
respect to statutorily determined percentage of seats for
Scheduled Caste, Scheduled Tribes, and Socially and
Educationally Backward Classes as enabled by Clause (5) of
Article 15 and other constitutionally permissible classes. With H
672 SUPREME COURT REPORTS [2011] 6 S.C.R.
A respect to Socially and Educationally Backward Classes, such
classes can be determined .only after excluding the creamy
layer, as held by this Court in Ashoka Kumar Thakur.
62. To the above we need to add another dimension. In
P.A. lnamdar, another fine distinction is drawn between
8
professional and non-professional educational institutions. We
now turn to paragraphs 104 and 105 of P.A. lnamdar below:
"104 Article 30(1) speaks of "educational institutions"
generally and so does Article 29(2). These articles do not
c draw any distinction between an educational institution
dispensing theological education or professional or non-
professional education. However, the terrain of thought as
has developed through successive judicial
pronouncements, culminating in Pai Foundation is that
D looking at the concept of education, in the backdrop of the
constitutional provisions, professional educational
institutions constitute a class by themselves as
distinguished from educational institutions imparting non-
professional education. It is not necessary for us to go
E deep into this aspect of the issue posed before us in as
much as Pai Foundation has classified that merit and
excellence assume special significance in the context of
professional studies. Though merit and excellence are not
anathema to non-professional education, the need for merit
F and excellence therein is not of the degree as is called for
in the context of professional education.
105. Dealing with unaided minority educational institutions,
Pai Foundation holds that Article 30 does not come in the
way of the State stepping in for the purpose of securing
G transparency and recognition of merit in the matter of
admissions ....... However, a distinction is to be drawn
between unaided minority educational institution at the
level of schools and undergraduate colleges on the one
side and institutions of higher education, in particular those
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 673
& ORS. [B.SUDERSHAN REDDY, J.]
imparting professional education, on the other side. In the A
former, the scope of merit-based selection is practically
nil and hence may not call for regulation. But in the case
of the latter, transparency, and merit have to be
unavoidably taken care of and cannot be compromised.
Those could be regulatory measures for ensuring B
educational standards ........ The source of this distinction
between two types of educational institutions referred to
hereinabove is to be found in the principle that right to
administer does not include a right to maladminister."
63. What stands out therefore, is that even though it is quite C
clearly and explicitly stated that maintenance of merit as
determined by marks secured in qualifying examinations is an
absolute necessity under Clause (6) of Article 19 for those
enjoying the freedoms only under sub-clause (g) of Clause (1)
of Article 19, the protection of clause (1) of Article 30 to D
minorities is extended to choosing those with merit, based on
·marks on the qualifying examinations, amongst their own
minority group. )here is no choice of "source" here. The choice
· is only with respect to being a minority or a non-minority
educational institution. If the choice is exercised that the E
promoters wish to start a minority educational institutioll, the
source immediately gets affixed, by clause (1) of Article 30 and
a determination of who falls within that minority group. The
educational institution does not do that. The State does that,
following a constitutionally mandated and permissible process. F
In that sense, even there it is the State which delineates the
"source" so that the protections of Clause (1) of Article 30
indeed flow to the minorities that the State was expected to
protect. Consequently, this attempt to define an equivalence
between non-minorities and minorities, and then come up with G
the idea that minorities can choose or create a "source" from
within the general pool, and hence the non-minorities should be
free to also create their own "sources" has to be deemed to
be illogical, and based on a weird interpretation of the
Constitution and the reality on the ground. The non-minority H
674 SUPREME COURT REPORTS [2011] 6 S.C.R.
A educational institutions have the basic freedom to choose:
those students who are the most meritorious as determined on
the basis of marks secured in a common entrance test with
respect to filling up the seats that are not covered by
reservations for Scheduled Castes, Scheduled Tribes, and
B "Socially and Educationally Backward Classes" pursuant to
clause (5) of Article 15. Consequently choice of students by non-
minority educational institutions can only be from the general
pool with respect to non-reserved seats. They carnot make
fu,rther distinctions of their own accord.
c 64. In light of the above we have to conclude that non-
minority private unaided professional colleges do not have the
right to choose their own "source" from within the general pool.
The equivalence between minority and non-minority unaided
institutions, apart from that distinction because of clause (1) of
D Article 30, was to be on the basis that both are subject to
reasonable restrictions pursuant to. clause (6) of Article 19, that
neither minority nor non-minority institutions could
maladminister their educational institutions, especially
professional institutions, that affect the quality of education, and
E by choosing students arbitrarily from within the sources that they
are entitled to choose from. In the case of non-minority
institutions, especially professional institutions, the "source" can
only be the general pool, and selection has to be based on inter-
se ranking of students who have qualified and applying or
F opting to choose to be admitted to such non-minority
educational institutions. In the case of minority educational
institutions, the "source" can be delimited to the particular
minority the institution belongs to. To hold otherwise would be
illogical, even if one were to assume that what is afforded to
G minority institutions is only a protection rather than a full fledged
right. The protection under clause (1) of Article 30 is granted
to minority institutions so long as they maintain their minority
status. If the non-minority ed;.icational institutions could choose
their own sources, minorities which are assured equal
H protections as non-minorities should certainly have that right
INDIAN MEDICAL ASSOCIATION v. UNION OF !NOIA 675
& ORS. [B.SUDERSHAN REDDY, J.]
too. The added protections to minority educational institutions A
makes sense only in the event that non-minorities are restricted
to choosing from the general pool, and minorities from the
delimited source of their own minority. Otherwise Clause (1) of
Article 30 would become meaningless.
B
65. Consequently, we hold that the arguments of learned
Senior Counsels, Mr. K.K. Venugopal and Mr. Jaideep Gupta
that ACMS as a non-minority professional institution has the
right to delimit a source of students are unpersuasive. ACMS
has only the right to choose students from within the general C
pool. Further, in as much as this court in P.A. lnamdar found
the judgment in Islamic Academy to be incorrect in presuming
that there could state quotas and management quotas, we
would also have to find that the 10% management quota
described in clause (a) of sub-section (1) of Section 12 to be
suspect. D
66. With regard to the proposition that the exemptions
granted to ACMS to fill up all ofits seats only with wards of army
personnel on account of national interest has also been noted
by us. However, given the ratio of P.A. lnamdar, we are unable E
to grant any relief on that count. We do recognize that it may
indeed be the case that army personnel, particularly those at
the lower end of the hierarchy in the army, and their families,
may be suffering from great hardships. It would indeed be, and
ought to be a matter of considerable national distress if persons F
who have agreed to lay down their lives, for the sake of national
security, are not extended an empathetic understanding of their
needs and aspirations. However, the ratio of the judgments in
TMA Pai, Islamic Academy and P.A. lnamdar, by larger
benches of this Court, leaves us with no options with respect G
to holding that ACMS may select only those students who have
scored higher marks in the common entrance test with respect
to seats remaining after taking into account reserved seats. This
is notwithstanding what we may perceive to be an odious and
an inherently unjust situation. If any special provisions need to H
676 SUPREME COURT REPORTS [2011] 6 S.C.R.
A be made to protect the wards of Army personnel, this may
possibly be done by the State, by laws protected by Clause (5)
of Article 15. The private society, of former and current army
personnel by themselves cannot unilaterally choose to do the
same.
B
67. Prior to the enactment of 93rd Constitutional
(Amendment) Act 2005, whereby Clause (5) was inserted into
Article 15 of our Constitution, the ratio in TMA Pai, as further
explained by P.A. lnamdar, would have foreclosed any options
C for the society and this country to relax the strict requirement
that all admissions be on the basis of "merit based on marks
secured in qualifying examinations." The other option would
have been for Courts to find, in the interests of justice, to expand
the "doing complete justice" jurisprudence under Article 142 to
correct such instances of injustice, which raises its own
D problems. If we find that every unaided educational institution
can define its own source, then we run head long into a situation
wherein the entire field of higher education is carved up into
"gated communities", with each new educational institution
defining its own source in whichever manner it may choose to,
E as long as overt and invidious constitutional grounds of
classification are not resorted to. How will the scholars in those
colleges interact with people from other communities, other
social backgrounds, so that they can perceive and conceive the
manner in which they may have to apply what they are learning
F to solve the problems in the wider social context of India?
Where would such classifications stop? Would members of the
judiciary, both higher and lower, then determine that they will
start many law colleges which will only admit wards of such
members of the judiciary? Would Indian Administrative Officers,
G along with some slightly lower level in the administrative rung
then have a similar right? Would the members of the police
force also then get such rights? Would NASSCOM or a group
of software companies say that they want to start software
engineering colleges that will open their portals only to those
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 677
& ORS. [B.SUDERSHAN REDDY, J.]
who belong to NASSCOM? Where will this stop? How will this A
nation take the burden of such walled and divided portals of
knowledge? What will become of the prayer of our national poet
laureate, that knowledge be free and where the world is not
broken up into fragments of narrow domestic walls? Have we
set ourselves on the path to such divisiveness, at the very source B
of the one force that could liberate us and unite us, and make
us a more egalitarian society? If we were to uphold the logic
of the learned Senior Counsel appearing for the Respondents,
which we cannot under the ratio of TMA Pai, and P.A. lnamdar,
but under "complete justice jurisprudence" of Article 142, then c
we would have set ourselves on a slippery slope, whereby the
entire field of higher education would comprise of "gated
communes" or some new and perverse form of caste system,
where existing advantages, of occupations, social and
economic stature, would get ossified only within a small D
segment of the population. Surely, fundamental rights have been
granted to the citizens, to be free and build a better society or
at least refrain from actions that would create further walls of
social division.
VII E
68. One last thing remains.
69. As we had noted earlier, the Constitutional validity of
Delhi Act 80 of 2007 was never raised, either by the Appellants F
or the Respondents, in any of the proceedings earlier. For the
first time, before us, the learned Senior Counsel, Mr. Jaideep
Gupta has raised the question of whether the provisions of
clause (5) of Article 15 violate the basic structure of the
Constitution in so far as they relate to enablement of the making
of "special provisions", by law, with respect to admissions of G
Scheduled Castes, Scheduled Tribes, and Socially and
Educationally Backward Classes into private unaided non-
minority educational institutions. This would obviously raise an
issue regarding applicability of Delhi Act 80 of 2007 in the
instant matter. We are hence, required to look at this issue too. H
678 SUPREME COURT REPORTS [2011] 6 S.C.R.
A In pressing the challenge of basic structure doctrine against
clause (5) of Article 15, the learned Senior Counsel relied on
the opinion of our learned brother Justice Dalveer Bhandari in
Ashoka Kumar Thakur, on the provisions of clause (5) of Article
15 that are applicable with respect to private unaided non-
B minority educational institutions. We note the specific text of the
constitutional provisions below, and thereafter briefly
summarise the opinion of Bhandari J, which learned Senior
Counsel adopts wholesale as his submissions.
Clause (5) of Article 15 states as follows:
c
"Nothing in this article or in sub-clause (g) of clause (1) of
Article 19 shall prevent the State from making any special
provisions, by law, for the advancement of any socially and
educationally backward classes of citizens or for the
D Scheduled Castes or the Scheduled tribes insofar as such
special provisions relate to their admission to educational
institutions including private educational institutions,
whether aided or unaided by the State, other than the
minority educational institutions 1 ~ferred to in clause (1) of
E Article 30."
70. In Ashoka Kumar Thakur, apart from Bhandari J., the
other four learned judges did not evaluate the issue of whether
the provisions in clause (5) of Article 15, as applicable to
unaided non-minority educational institutions, violate the basic
F structure of the Constitution. This was on the grounds that no
unaided educational institutions were before this Court. The
majority, including Bhandari J., held that the same provisions
in so far as they relate to governmental and private aided
institutions to be valid and not in violation of the basic structure.
G However, Bhandari J., opined that in as much as reservations
would be imminent, pursuant to clause (5) of Article 15, the
same ought to be tested because the content of freedoms
enunciated by this Court, in TMA Pai, and P.A. lnamdar, were
likely to be destroyed. It was granted that, even though this Court
H had held in TMA Pai, as explained in P.A. lnamdar, that
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 679
& ORS. [B.SUDERSHAN REDDY, J.]
imposition of reservations on non-minority unaided educational A
institutions to be unreasonabl.e restrictions under clause (6) of
Article 19 on the freedoms granted by sub-clause (g) of clause
(1) of Article 19 to pursue the charitable occupation of starting,
operating, financing, working and teaching in non-minority
unaided educational institutions, the same could be subjected, B
by a constitutional amendment, to the provisions of clause (5)
of Article 15. Nevertheless, it was reasoned that in as much as
the freedoms of citizens to engage in the occupation of
education was under potential threat, and further because the
occupation of education was one of the activities covered by c
freedoms that were part of the "Golden Triangle", as enunciated
in Minerva Mills Ltd. V Union of lndia 15 , it was posited that the
details be examined as to the degree of abridgment of the
freedom of the "educators" to start, operate, manage, finance,
work in and teach in non-minority educational institutions.
D
71. The main conclusion reached was that "educators" who
do not take a "paisa of public money" ought to be free from
restrictions of State imposed reservations. Further, it was also
opined that even though non-minority unaided educational
institutions would continue to exist, and educators would have E
their occupation, the "greatest impact on the educator is that
neither he nor his institution will choose whom to teach'; in as
much as in "49.5%" of the time the State would determine,
through a policy of reservations, who the educators would
· teach. In this regard, the test for violation of basic structure F
doctrine was conducted by an impact and effects test (or what
is called as a "rights test"), claiming that the observations of
J.R. Coelho v. State of Tamil Nadu 16 in para 151 (ii) mandated
such a test. In the first phase, the so called impact stage, it was
determined that clause (5) of Article 15 would indeed affect the G
"identity" of the freedom of private citizens to engage in the
charitable occupation of starting, operating, managing, working
1s. (1980) 3 sec 625.
16. (2007) 2 sec 1. H
680 SUPREME COURT REPORTS [2011] 6 S.C.R.
A in, financing and teaching in non-minority unaided educational
institutions. To this extent, the observations in TMA Pai were
relied on to trace the contours of the outline of the "identity" of
the freedom under sub-clause (g) of clause (1) of Article 19.
The test of violation of basic structure doctrine was further stated
B to be whether the identity of the freedom of educators in non-
minority unaided educational institutions under sub-clause (g)
of clause (1) of Article 19 was "compromised" by clause (5) of
Article 15. It was also held that even if the freedom to choose
students of one educator was affected, then the identity of the
c freedom to engage in the said occupation guaranteed by sub-
clause (g) of clause (1) of Article 19 itself would have been
compromised, and consequently the provisions in clause (5) of
Article 15 in as much as they affect non-minority unaided
educational institutions would have to be deemed to be
unconstitutional and violativ~ of the basic structure. Thereafter
0
an "effect" test was conducted, and by noting that imposition
of reservations would immediately (1) make academic
standards suffer; (2) affect the ability of attracting and retaining
good quality faculty; (3) the incentive to establish a first-rate
unaided educational institution is made difficult; and (4)
E ultimately the global reputation of educational institutions would
be damaged, it was held that freedom of "educators" in non-
minority unaided educational institutions would have been
compromised and hence abrogated. Further, it is determined
that sub-clause (g) of clause (1) of Article 19 to itself be a basic
F feature of the Constitution, and it is further observed that:
"Given the dramatic effect that reservations would have on
educators, the unaided institutions in which they teach, and
consequently society as a whole, Article 19(1)(g) has been
G more than abridged ..... The identity of the Constitution is
altered when unreasonable restrictions make a
fundamental right meaningless .... Imposition of
reservations on unaided institutions has abrogated Article
19(1)(g), a basic feature of the Constitution."
H
INDIAN MEDICAL ASSOCIATION v UNION OF IND!A 681
& ORS. [B.SUDERSHAN REDDY, J.]
72. The learned Senior Counsel, Mr. Jaideep Gupta, has A
pressed upon us to follow the same methodology and find that
clause (5) of Article 15 abrogates the basic structure of the
constitution, and consequently declare those aspects of Delhi
Act 80 of 2007 that impose reservations to be unconstitutional.
We state our response very simply: we are not persuaded by s
the same, and for the reasons discussed hereafter with humility
and utmost respect beg to differ from the view taken by our
esteemed brother Bhandari J.
73. Clause (5) of Article 15 is an enabling provision and
inserted by the 93rd Constitutional (Amendment) Act, 2005 by C
use of powers of amendment in Article 368. The 93rd
Constitutional (Amendment) Act, 2005 was in response to this
Court's explanation, in P.A. lnamdar, of the ratio in TMA Pai,
that imposition of reservations on non-minority unaided
educational institutions, covered by sub-clause (g) of clause (1) D
of Article 19, to be unreasonable restrictions and not covered
by clause (6) of Article 19. The purpose of the Amendment was
to clarify or amend the constitution in a manner that what was
held to be unreasonable would now be reasonable by virtue of
the Constitutional status given to such measures. The correct E
approach would then be to test whether powers of amendment
in Article 368 do extend to imposing restrictions on a right,
which otherwise would have been held to be "unreasonable" on
account of a judgment of this Court. Once that test is conducted
and found to be not violating the basic structure of _the F
Constitution, the grounds on which this Court had previously
found the reservations to be unreasonable would v~nish.This.
is even more so, when the amendment, and the consequent
legislation, cannot and do not seem to be directed at completely
eliminating the possibility of private citizens engaging in that G
activity, the right to charge appropriate fees is protected, and
moreover the existing jurisprudence does not allow, normally
an imposition of reservations above 50%. If we were to be
guided by the submissions in this regard by the learned Senior
Counsel we find that we would have to invert the logic of the H
682 SUPREME COURT REPORTS (20111 6 S.C.R.
A basic structure doctrine, state the propositions of the test in a
tautological manner and consequently convince ourselves that
there is great danger to constitutional identity by virtue of
legislations that could plausibly be enacted by the State by
virtue of the enabling provisions of clause (5) of Article 15 with
B respect to non-minority unaided educational institutions. We find
that if we were to do that, we would have set ourselves on the
path to ineradicably alter the identity of our Constitution,
damage its very purposes and the national project, and wipe
out decades worth of jurisprudence with regard to the
c importance of Directive principles of State Policy, thereby
bringing back the principles enunciated in the case of I. C.
Golaknath v. State of Punjab 17 , that none of the fundamental
rights can be abridged or affected in any manner, which was
set aside by this Court in Keshavananda Bharati v. State of
Kera/a 18 •
0
74. In this regard we also opine that if we adopt the
interpretation of para 151 (ii) of l.R. Coelho that it mandates a
"rights test" we would end up misinterpreting the modality of
testing a Constitutional amendment on the anvil of the basic
E structure doctrine as enunciated by this Court in that case itself.
In this regard, a basic distinction was drawn by this Court, in
l.R. Coelho, as between "rights test" and "essence of rights"
test, and it was stated in para 142 that:
F "There is a/so a difference between the "rights test" and
the "essence of rights" test. Both form part of application
of the basic structure doctrine. When in a controlled
Constitution conferring limited power of amendment, an
entire chapter is made inapplicable. the "essence of right"
test as applied in M. Nagaraj Case will have no
G
applicability. In such a situation, to judge the validity of law,
it is the "right test" which is more appropriate."
17. (1967) 2 SCR 762.
H 1s. (1973) 4 sec 22s.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 683
& ORS. [B.SUDERSHAN REDDY, J.]
75. Paragraph 151(ii) in l.R. Coelho, when read by itself, A
may suggest that an effect and impact test be used; however
we are unable to do so because of what was stated in para
142 of l.R. Coelho stated above. This is on account of the fact
that if we were to take the concluding answer given to a specific
question, and conflating the same to the status of a ratio B
applicable to all other general or specific facts, we run the risk
of not recognizing the rationale by which the Court had arrived
at the final answers. This has a deleterious effect on law. The
broader principles that are applied, in a specific manner to
particular fact patterns located in the specific questions that the .c
courts set out to answer, would then be obliterated, and the
narrow application that the Court finds for a specific situation,
which is but an instance of the broader principle, the genus,
would have taken over. Moreover, in the preceding paragraph
150, this Court enunciated that it is the constitutional validity of 0
the Ninth Schedule laws which have to be adjudged by applying
the "direct impact and effect test i.e. rights test." Consequently,
if we were to just take the text of para 151 (ii) by itself as the
ratio, then we would also run the risk of not recognizing the
multiple principles enunciated in the conclusion itself. Hence,
we find it necessary to cite below sub-paras (i), (ii), (iii), (iv) and E
(v) of Para 151 of l.R. Coelho below (emph. supplied), and
thereafter derive the principle that is applicable in the instant
matter:
"(i) A law that abrogates or abridges rights guaranteed by F
Part Ill of the Constitution may violate the basic structure
or it may not. ·1f former is the consequence of the law,
whether by amendment of any article or by an insertion in
the Ninth Schedule, such law will have to be invalidated in
exercise of judicial review power of the Court. The validity G
or invalidity would be tested on the principles laid down in
this judgment.
(ii) The majority judgment in Keshavananda Bharati case
H
684 SUPREME COURT REPORTS [2011] 6 S.C.R.
A read with Indira Gandhi case 19 requires the validity of each
new constitutional amendment to be judged on its own
merits. The actual effect and impact of the law on the rights
guaranteed under Part Ill has to be taken into account for
determining whether or not it destroys basic structure, The
B impact test would determine the validity of the challenge.
(iii) All amendments to the Constitution made on or after
24-4-1973 by which the Ninth Schedule is amended by
inclusion of various laws therein shall have to be tested on
the touchstone of the basic or essential features of the
c Constitution as reflected in Article 21 read with Article 14,
Article 19, and the principles underlying them. To put it
differently even though an Act is put in the Ninth Schedule,
its provisions would be open to attack on the ground that
they destroy or damage the basic structure if the
D fundamental right or rights taken away or abrogated
pertains to or pertain to the basic structure.
(iv) Justification for conferring protection, not blanket
protection, on the laws included in the Ninth Schedule by
E constitutional amendments shall be a matter of
constitutional adjudication by examining the nature and
extent of infraction of a fundamental right by a statute,
sought to be constitutionally protected, and on the
touchstone of the basic structure doctrine as reflected in
Article 21 read with Article 14 and Article 19 by application
of the "rights test" and "essence of the right" test taking the
synoptic view of the Articles in Part Ill as held in Indira
Gandhi case 20 • Applying the above tests to the Ninth
Schedule laws, if the infraction affects the basic structure
then such law(s) will not get the protection of the Ninth
G
Schedule.
(v) This is our ansyJer to the question referred to us vide
19. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
H 20. 1975 Supp sec 1.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 685
& ORS. [B.SUDERSHAN REDDY, J.]
order dated 14-9-1999 in l.R. Coelho v. State of T.N" A
76. It should be pointed out that l.R. Coelho judgment was
delivered to answer the question, as pointed out in para 5, as
to whether it is "permissible for the Parliament under Article
31-B to immunize legislation from fundamental rights by
inserting them into the Ninth Schedule, and if so, what is its
8
effect on the power of judicial review of the Courf'. In para 78
of l.R. Coelho it was noted that the "real crux of the problem is
to the extent and nature of immunity under Article 31-B can
validly provide". The question of immediate purport was
whether Article 31-8 provided a blanket protection such that C
legislative enactments which destroy the basic structure could
be included in the Ninth Schedule, and thereby become immune
from the test of basic structure itself.
77. One of the incidental questions that this Court in l.R. D
Coelho sought to answer was whether, pursuant to
Keshavananda, none of the fundamental rights were to be
considered to be a part of the basic structure. This was so, in
the light of the opinion of Khanna, J., in Keshavananda, which
seemed to suggest that fundamental rights were not to be E
treated as a part of the basic structure. However, in light of
Khanna J's, clarification in the Indira Nehru Gandhi v Raj
Narain case 21 , that his opinion in Keshavananda could not be
read to mean that none of the fundamental rights could be
treated as a part of basic structure, this Court in l.R. Coelho in F
para 97, held that "the rights and freedoms created by the
fundamental rights chapter can be taken away or destroyed
by amendment of the relevant article, but subject to the
limitation of the basic structure doctrine". In para 98 it was
observed by this Court that "the first aspect to be borne in mind
is that each exercise of the amending power inserting laws into G
the Ninth Schedule entails a complete removal of the
fundamental rights chapter vis-a-vis the laws that are added
to the Ninth Schedule. Secondly, insertion in the Ninth
21. 1975 Supp sec 1. H
686 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Schedule is not controlled by any defined criteria or standards
by which the exercise of power may be evaluated. The
consequence of insertion is that it nullifies entire Part /II of the
Constitution. There is no constitutional control on such
nullification........ The supremacy of the Constitution
B mandates all constitutional bodies to comply with the
provisions of the Constitution. It also mandates a mechanism
for testing the validity of legislative acts through an
independent organ viz. the judiciary." Thus, it appears that
what was exercising the collective mind of the Nine Judge
C Bench in l.R. Coelho was the breadth of protections that were
being sought and placed on laws included in the Ninth
Schedule: from any standards or values of the Constitution itself,
including complete evisceration of Part Ill and judicial review.
In fact this is borne out by para 103 wherein it was observed
that "[T]he absence of guidelines for exercise of such power
D means the absence of constituticnal control which results in
destruction of constitutional supremacy and creation of
parliamentary hegemony and absence of full power of judicial
review to determine the constitutional validity of such
exercise."
E
78. It would be pertinent to note that the provisions of new
clause (5) of Article 15 do not purport to take away the power
of judicial review, or even access to courts through Articles 32
or 226. Neither do the provisions of clause (5) of Article 15
F mandate that the field of higher education be taken over by the
State itself, either to the partial or total exclusion, of any private
non-minority unaided educational institutions, a power that was
most certainly granted under clause (6) of Article 19, which had
been inserted by the 1st Constitutional Amendment in 1951.
G The purport of its provisions is that sub-clause (g) clause (1)
of Article 19 should not be read to mean that if the State were
to make "special provisions" with respect to admission of
Scheduled Castes, Scheduled Tribes, and Socially and
Educationally Backward Classes to non-minority unaided
H educational institutions the same should not be deemed to be
INDIAN MEDICAL ASSOCIATION v. UNION OF !NOIA 687
& ORS. [B.SUDERSHAN REDDY, J.]
unreasonable. A small portion, of one of the activities of one A
particular occupation in the entire field of occupations that are
a part of the guaranteed freedoms by sub-clause (g) of clause
(1) of Article 19, is to be restricted. Further, such an amendment
was necessary, as stated in the Statement of Objects and
Reasons of the Constitution (one Hundred and Fourth B
Amendment) Bill 2005 (which became the 93rd Constitutional
(Amendment) Act, 2005), to promote the "educational
advancement of the socially and educationally backward
classes of citizens .... The Scheduled Castes and Scheduled
Tribes in matters of admission of students belonging to these c
categories in unaided educational institutions other than
minority educational institutions." It was also stated that greater
access to higher education, including professional education
to students belonging to weaker segments is a matter of major
concern, and that the number of seats available in aided or
0
State maintained institutions, particularly in respect of
professional education, was limited in comparison to those in
private unaided institutions. Furthermore, in as much as Article
46, a Directive Principle of State Policy, commands that the
State promote with special care the educational and economic
interests of the weaker sections of the population and protect E
them from social injustice, it was stated that access to
education to be important to ensure advancement of persons
belonging to Scheduled Castes, Scheduled Tribes and the
Socially and Educationally Backward Classes.
F
79. In this regard, l.R. Coelho makes some very important
observations, about the equality code and egalitarian content
of fundamental rights that we opine have a direct bearing on
the issues of basic structure review of clause (5) Article 15. In
particular after noting that Part Ill "has a key role to play in the G.
application" of the basic structure doctrine (para 100), the Court
went on to state para 101:
Regarding the status and stature in respect of fundamental
H
•
688 SUPREME COURT REPORTS [2011] 6 S.C.R.
A rights in constitutional scheme, it is to be remembered that
fundamental rights are those rights of citizens or those
negative obligations of the State which do not permit
encroachment on individual liberties. The state is to deny
no one equality before the law. The object of fundamental
B rights is to foster the social revolution by creating a society
egalitarian to the extent that all citizens are to be equally
free from coercion or restriction by the State: By enacting
fundamental rights and directive principles which are
negative and positive obligations of the State, the
c Constituent Assembly made it the responsibility of the
Government to adopt a middle path between individual
liberty and public good. Fundamental rights and directive
principles have to be balanced. The balance can be tilted
in favour of the public good. The balance however cannot
be over-turned by completely overriding individual liberty.
D
This balance is an essential feature of the Constitution."
(emph. Supp.)
80. Further, it was also stated in, in para 102, that in
evaluating the permissibility of an amendment, one needs to
E look at; as done in Waman Rao v. Union of lndia 22 , how far
the amendment is "consistent with the original; you cannot by
an amendment transform the original into the opposite of what
it is. For that purpose, a comparison is undertaken to match
the amendment with the original. Such a comparison can yield
F fruitful results even in the rarefied sphere of constitutional law."
In other places, as in para 105, it is noted that "Economic
growth and social equity are two pillars of our Constitution,
which are linked to the rights of an individual (right to equal
opportunity), rather than in the abstract. Some of the rights in
G Part I/I constitute fundamentals of the Constitution like Article
21 read with Attic/es 14 and 15 which represent secularism
etc., As held in Nagaraj2 3 egalitarian equality exists in Atticle
14 read with Articles 16(4), (4-A), (4-B) and, therefore, its
22. (1981) 2 sec 362.
H 23. M. Nagaraj v. Union of India (2006) 8 SCC 202.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 689
& ORS. [B.SUDERSHAN REDDY, J.]
wrong to suggest that equity and justice finds place only in A
the directive principles." (emph. supp'd). Upon discussing
various aspects such as the fact that extensive discussions
were held in Keshavananda with respect to status of property
as a fundamental right, that in the Indira Gandhi case
Chandrachud, J., posits that equality embodied in Article 14 is B
part of the basic structure of the Constitution, that in Minerva
Mills it was held that Articles 14, 19 and 21 clearly form part of
the basic structure of the Constitution and cannot be abrogated,
it is concluded in para 114 that "the result of the aforesaid
discussion is that since basic structure of the constitution c
includes some of the fundamental rights, any law granted Ninth
Schedule protection deserves to be tested against these
principles. If the law infringes the essence of any fundamental
rights, or any other aspect of the basic structure then it will be
struck down. The extent of abrogation and limit of abridgment D
shall have has to be examined in each case." (emph. supp.)
81. Consequently, it appears that in l.R. Coelho this Court
recognized that there are different kinds of constitutional
amendments. The kinds of amendments whereby laws are
placed in the Ninth Schedule only enjoy a "fictional immunity" E
and they would have to be tested by using the direct impact and
effect test i.e., "rights test" or even the essence of each
fundamental right that has been deemed to be a part of the
basic structure. The laws placed in the Ninth Schedule are
ordinarily enacted, and then placed in Ninth Schedule by a F
constitutional amendment, simpliciter, and enjoy only a "fictional
immunity" pursuant to Article 31-8. This is in contrast to the
situation where a Constitutional amendment effectuates
changes in the main provisions of the Constitution, particularly
in Part Ill. In such a constitutional amendment, the "essences G
of rights" test used in M. Nagaraj, wherein the essences of the
rights are identified across entire equality, freedom and judicial
review codes, i.e., "over-arching principles" of such codes, and
then the particular Constitutionol amendment is evaluated as
to whether it completely changes the very "identity" of the entire H
690 SUPREME COURT REPORTS [20111 6 S.C.R.
A Constitution itself. Those "over-arching principles" are what
gives the Constitution its identity, and when they are destroyed
would the identity of the Constitution have been changed
completely.
82. This is made very clear by what this Court in l.R. Coelho
9
perceived to be the status of the nature of immunity granted by
Article 31-B: "Article 31-B gives validation based on fictional
immunity. In judging the validity of constitutional amendment'
i.e., the amendment that places a state law in the Ninth
Schedule "we have to be guided by the impact test." (see para
C 149) "The basic structure doctrjne requires the State to justify
the degree of invasion of fundamental rights ... " Further on in
para 150 the Court concludes "The result of the aforesaid
discussion is that the constitutional validity of the Ninth
Schedule laws can be adjudged by applying the direct impact
D and effect test i.e., rights test, which means the form of an
amendment is not the relevant factor, but the consequences
thereof."
83. The above cited paragraph lends further support to our
E earlier observation that this Court in l.R. Coelho has made an
essential distinction between the kinds of constitutional
amendments that are effected by placement of State laws in
the Ninth Schedule versus the kinds of constitutional
amendments that change aspects of the Constitution itself. This
F is further supported by the fact that in para 133 the Court
recognized that the laws placed in the Ninth Schedule do not
become a part of the main body of the Constitution, and that
they become a part of Ninth Schedule and "derive validity on
account of the exercise undertaken by Parliament to include
them ... This exercise has to be tested every time it is
G undertaken". Secondly, it must also be noticed, that state
legislatures cannot amend the constitution. It was conclusively
held in l.R. Coelho, in para 14.8, that "fictional validation based
on the power of immunity exercised by Parliament under
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 691
& ORS. [B.SUDERSHAN REDDY, J.}
Article 368 is not compatible with basic structure doctrine and, A
therefore, the laws that are included in the Ninth Schedule
have to be examined individually for determining whether the
constitutional amendments by which they are put in the Ninth
Schedule damage or destroy the basic structure of the
Constitution." This was so because post. Keshavananda B
decision, this Court had specified that some of the fundamental
rights are also a part of the basic structure because of their
importance. Consequently, a direct impact and effect test i.e.,
"rights test" and "essence of right" i.e., the essence of the
fundamental right that has been affected has to be conducted c
in the case of laws included in the Ninth Schedule by virtue of
the constitutional amendments, simpliciter, whereas with respect
to constitutional amendments of an article in the Constitution
itself had to be tested in accordance with the essences of rights
i.e., "over-arching principles" test as enunciated in M. Nagaraj. D
This is further borne out by sub-para (i) of paragraph 151 cited
earlier when read with para 142, and taking the entire judgment
in l.R. Coelho into account.
84. A few observations are merited with regard to the very
carefully crafted principles laid down in the sub-para (i) of para E
151 in l.R. Coelho. The first point is that a law that abrogates
or abridges rights guaranteed by Part Ill may or may not violate
the basic structure. This means that there could be laws that
could abrogate some fundamental rights in Part Ill, and yet may
not lead to a violation of the basic structure doctrine. The second F
sentence in sub-para (i) states emphatically that if a law
abrogates or abridges a fundamental right and also violates the
basic structure then it must be set aside. At this stage it is not
yet clear whether the law is a constitutional amendment
exercised under Article 368 to make an amendment to the main G
body of the constitutional text, or the law is an amendment that
places laws in the Ninth Schedule, whereby such laws in the
Ninth Schedule do not become a part of the Constitution as
such. That clarification comes from the next sentence: "The
validity or invalidity would be tested on the principles laid down H
692 SUPREME COURT REPORTS [2011) 6 S.C.R.
A in this judgment". That sentence clearly indicates that the same
has to be determined in accordance with the principles laid
down in the entire judgment and not just in the conclusion. That
principle was unequivocally laid down in para 142 that had been
cited earlier, which recognizes that the test of Constitutional
B amendments on the anvil of the basic structure doctrine would
have to be in accordance with the test delineated in M. Nagaraj.
85. In light of the above discussion, we are of the opinion
that it is impermissible for us to apply the direct impact and
effects test to evaluate whether clause (5) of Article 15
C provisions with respect to admissions to unaided non-minority
educational institutions violate the basic structure. By no stretch
of imagination could the provisions of Clause (5) of Article 15
be deemed to be so wide as to eliminate an entire chapter of
fundamental rights, or permit complete evisceration of even the
D freedom to engage in one of the occupations of the many
occupations guaranteed by clause (g) of clause (1) of Article
19. The correct test would be the "essences of rights" test, i.e.,
the "over-arching principles" test as enunciated in M. Nagaraj24 ,
to which we turn below.
E
86. In M. Nagaraj, Kapadia J., (as he then was) speaking
for the Court, recognized that one of the cardinal principles of
constitutional adjudication is that the mode of interpretation
ought to be the one that is purposive and conducive to ensure
F that the constitution endures for ages to come. Eloquently, it was
stated that the "Constitution is not an ephemeral legal
document embodying a set of rules for the passing hour". In
M. Nagaraj this Court recognized that fundamental rights are
not those which exist only by virtue of the State recognizing them
to be so, but rather that the Constitution transcribes them as
G limitations on the power of the State. This would mean that not
merely or solely are the negative rights to be conceived as
natural, given and pre-existing, but the positive rights, which cast
an obligation on the State to achieve egalitarian and social
H 24. (2006) a sec 212.
INDIAN MEDICAL ASSOCIATION v UNION OF INDIA 693
& ORS. [B.SUDERSHAN REDDY, J l
justice objectives, that behoove to the benefit of individuals and A
groups would also have to be recognized as natural, given and
pre-existing. It is also recognized that the content of the
fundamental right granted to a citizen has to be determined by
the judiciary; and variations effectuated by the State have to
meet the test of reasonableness as enunciated by this Court B
in Minerva Mills, which effectively set aside the narrow
construction of A.K. Gopalan v State of Madras25 that as long
as the variation and the extent of such variation of a granted
fundamental right is effectuated by "law" it could not be
questioned. However, it was also recognized that the judiciary c
cannot use a narrow and pedantic exposition of the text of the
fundamental right to determine the contents thereof. Further, the
Court in M. Nagaraj recognized that the standard of judicial
review of a constitutional amendment, on the touchstone of the
doctrine of the basic structure, is an entirely different exercise D
than review of state legislation with respect to its impact on a
specific fundamental right. Analysing the rationale and·mode
of analysis of the Court in S.R. Bommai v. Union of lndia26 , it
was stated, in para 23, that "it is important to note that the
recognition of a basic structure in the context of amendment E
provides an insight that there are, beyond the words of
particular provisions, systematic principles underlying and
connecting the provisions of the Constitution. These
principles give coherence to the Constitution and make it an
organic whole.... These principles are part of constitutional
law even if they are not expressly stated in the form of rules. F
An instance is the principle of reasonableness which connects
Article 14, 19 and 21. Some of these principles may be so
important and fundamental, as to qualify as ."essential
features" or part of the "basic structure" of the Constitution, that
is to say, they are not open to amendment. However, it is only G
by linking provisions to such overarching principles that one
would be able to distinguish essential from less essential
features of the Constitution." (emphasis added). It was further
25. 1950 SCR 88.
26. (1994) 3 sec 1. H
694 SUPREME COURT REPORTS [2011] 6 S.C.R.
A specified that certain principles, such as federalism. socialism,
secularism and reasonableness "are beyond the words of a
particular provision. They are systematic and structural
principles underlying and connecting various provisions of the
Constitution."
B
87. The modality of the "essences of rights test" was
enunciated in para 25 of M. Nagaraj as follows: " Jn order to
qualify as an essential feature, it must be first established that
the said principle is a part of constitutional law binding on the
legislature. Only, thereafter, is the second step to be taken,
C namely whether, whether the principle is so fundamental as
to bind even the amending power of Parliament i.e., to form
a part of the basic structure ..... To sum up: in order to qualify
as an essential feature, a principle is to be first established
as part of constitutional law and as such binding on the
D legislature. Only then, can it be examined whether it is so
fundamental as to bind even the amending powers of
Parliament i.e., to form part of the basic structure of the
Constitution. This is the standard of review of constitutional
amendments in the context of the doctrine of the basic
E structure." And further on, in para 26, the Court also recognized
that the doctrine of basic structure has emanated from the
German Constitution and notes that in that jurisprudence the
overarching principle that connects, and informs all other values
is the principle of human dignity. With respect to our
F Constitution it was noted that "axioms like secularism,
democracy, reasonableness, social justice, etc., are over-
arching principles which provide linking factor for the principle
of fundamental rights like Article 14, 19 and 21. These
principles" i.e., the over-arching principles, "are beyond the
G amending power of Parliament." (emph. suppd.)
88. From the above we can glean that evaluation of
whether a particular amendment has amended those "over-
arching principles" is the test for basic structure. It is not the
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 695
& ORS. [B.SUDERSHAN REDDY, J.]
specific instances of expression of contents of a fundamental A
right, as stated by the courts prior to an ameAdment which are
to become the anvil of the test of basic structure when the
amending power is exercised and a main element of the
provisions of the Constitution is altered. Rather, the courts have
to be careful in assessing whether those over-arching principles B
themselves are abrogated. By no stretch of imagination could
one claim that lruncation of one of the activities that were
deemed to have been one of the many essential features of
one of the occupations of the many occupations that are
guaranteed by one of clauses of the freedom code, by itself c
could constitute an over-arching principle, and further that such
a principle has been abrogated. It is not the change in the
identity of any one element of the conspectus of activities of
one occupation in a plethora of occupations that itself forms a
part of the many different kinds of freedoms that leads to the
0
violation of the basic structure doctrine; but rather whether the
over-arching principles, that connect one fundamental right to
the other that are so abrogated as to change the very identity
of the Constitution which is the true test to evaluate whether a
constitutional amendment has violated the basic structure E
doctrine. In this regard, the Court iri M. Nagaraj further goes on
to pithily state that the standard to be applied in evaluating
whether an amendment has also modified the over-arching
principles, that inform each and every fundamental right and link
them, is to find whether because of such a change we have a
completely different constitution. In particular, summarizing the F
various opinions in Keshavananda Bliarati27 , it was stated:
"To conclude, the theory of basic structure is based on
the concept of constitutional identity. The basic structure
jurisprudence is a preoccupation with constitutional G
identity .... The word "amendment" postulates that the old
Constitution survives without a loss of its identity despite
the change and it continues even thoughit has been
subjected to alteration. This is the constant theme of
21. (1973) 4 sec 22s. H
696 SUPREME COURT REPORTS [2011] 6 S.C.R.
A opinions in the majority decision in Keshavananda
Bharati. To destroy its identity is to- abrogate the basic
structure of the Constitution ........ The main object
behind the theory of constitutional identity is continuity
and within that continuity of identity, changes are
B admissible depending upon the situation and
circumstances of the day." (emphasis added, para 28).
89.The prevention of destruction of the "constitutional
. identity" is the chief rationale in using the basic structure
doctrine in instances of constitutional amendment such as the
C one we are concerned with in the instant matter. Constitutional
identity, and continuance of such an identity are the primordial
issues, and the identity ought not to be destroyed. Often a
problem is encountered with issues of identity. The issue of
change in identity, and debates about it can take extremely
D abstract and metaphysical form as with regards to the Ship of
Theseus 28 or the Theseus' Paradox. In the classical narrative,
in the metaphysical speculations about the paradox, reference
is with respect to the ship in which Theseus, and other youth of
Athens, returned from Crete having killed a minotaur that
E demanded sacrifice of Greek youth every year. Because the
ship was of such importance, Athenians preserved it in the
harbor for generations, replacing its boards that had become
dilapidated by new ones, where at one point all the boards had
been replaced. This apparently led to the fertile Greek minds,
F prone as they were to metaphysical speculation, to ask whether
the ship, after every part had been replaced by another newer
part, was indeed the same ship or not. For the formalists, the
identity had changed because none of the original parts were
there; and in fact the extreme amongst them claimed that the
G identity had changed when the first part was itself changed. For
the functionalists, the ship was identically the same because
the parts that replaced the worn out parts were of the same
quality, shape and size and performed exactly the same
functions as previously specified. In either case, both the
H 28. Plutarch: Theseus, trans. John Dryden.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 697
& ORS. [B.SUDERSHAN REDDY, J.]
puritanical originalists delighted in the squabble without there A
being any pragmatio resolution.
90. Unfortunately, we as constitutional adjudicators do not
have the luxury of facile metaphysical speculations, and
imposing conclusions arrived thereupon on this country, by B
ignoring the practical impact of the ship and the larger
purposes that it is supposed to serve. Indeed our ship, the
Constitution; was never intended to remain in the harbour and
was intended to set sail. The narrative of our Ship of Theseus
takes a different form for us.
c
91. We liken our Constitution to the Ship of Theseus, with
the difference that the ship itself has been provided with
sufficient wood, and tools to fashion new boards, and it was to
actually set sail. The Ship of our Nation, the Constitution, set
sail on its journey in 1950, on uncharted oceans of time, D
circumstances and challenges. We set sail with a ship as it was
then designed, nevertheless knowing that certain features were
quintessential to being a ship that could sail such oceans; and
we set sail towards a target, almost like Columbus, with the
understanding that sailing in a particular direction would get us E
to a particular destination. We even promised ourselves, that
notwithstanding our prior history of bickering, of degradation of
humans amongst us by ascribed status, and of economic
poverty, we would have, by the time of reaching our goal,
ensured that certain invaluable qualities, such as dignity, F
fraternity, security and integrity of our nation-state, inform all
aspects of social. order. In fact the achievement of those
qualities was to be the goal. The directions we were given were
that if we strive to achieve, in actual fact, JUSTICE, social,
economic and political; LIBERTY of thought, expression, belief, G
faith and worship; and EQUALITY of status and opportunity;
within the context of organizing our polity as a secular, socialist
and a democratic republic, and the State itself, necessarily
follows certain principles of policy, we would achieve those
goals. We were enjoined to roam the high seas until we H
698 SUPREME COURT REPORTS [2011) 6 S.C.R.
A achieved a state of acceptable achievement of those goals,
neither knowing the length of time nor the length of that journey.
In fact we also knew, that achievement of those goals was never
going to be a matter of some quantitative assessment of those
goals, but always a maintenance of the path towards, and
B sustaining what we may have already achieved. We also knew
that along that journey, many of the boards, and indeed even
certain parts of the main structure may appear to be or actually
become a detriment to our progress. Hence, we were also
given liberty to change some of those parts, in terms of
c replacing those parts with exact same ones, or mostly similar
ones, or even radically differently designed ones. The caveat
was that, if the changes were such that the destination could
not be reached, or that the motive force for powering the journey
would become truncated, or debates could not be conducted
within the settled principles of civility, or that on the course of
0
that journey too many were actually getting pushed off the ship,
or that the changes were such that the ship would turn into a
tiny raft, in which the people on the margins would necessarily
get pushed into the ocean, etc., the ship of our nation, the
E Constitution, would sink. If inappropriate changes were made,
the ship would sink; and if the appropriate changes were to not
be made the ship would sink. Neither wrong action, nor
abstinence from action was permissible.
92. In this regard, this Court, charged with the responsibility
F of ultimately interpreting the design of the structure of that ship,
stated thus:
"{C]onstitutional adjudication is like no other decision-
making. There is a moral dimension to every major
constitutional case: the language of the text is not
G
necessarily a controlling factor. Our Constitution works
because of its generalities; and because of the good
sense of the judges when interpreting it. It is that informed
freedom of action of judges that helps to preserve and
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 699
& ORS. [B.SUDERSHAN REDDY, J.]
protect our basic document of governance." (para 30 of A
M. Nagaraj).
93. Proceeding on the rationale as enunciated in the cited
. paragraphs, this Court in M. Nagaraj, then enunciated that the
"theory of the basic structure is based on the principle that a
8
change in a thing does not involve its destruction and
destruction of a thing is a matter of substance and not of form.
Therefore one has to apply the principle of over-arching
principle to be gathered from the scheme and the placement
and the structure of an article in the Constitution. For example,
the placement of Article 14 in the equality code; the placement C
of Article 19 in the freedom code; the placement of Article 32
in the code giving access to the Supreme Courf'.
94. Yet, the question remains? How do we discern whether
a particular aspect is a part of the basic structure or not? In M. D
Nagaraj, this Court reaffirmed the working test laid down by
Chan_drachud J., in Indira Nehru Gandhi:
"For determining whether a particular feature of the
Constitution is a part of the basic structure, one has to
perforce to examine in each individual case the place of E
the particular feature in the scheme of our Constitution,
its object and purpose, and the consequences of its
denial on the integrity of the Constitution as a
fundamental instrument of country's governance.•
95. In this regard, it was noted in M. Nagaraj that concepts F
like "equality", "representative democracy" etc., are delineated
over various articles. "Basically Part Ill of the Constitution
consists of equality code, the freedom code and the right to
move the courts. It is true that equality has several facets.
However, each case has to be seen in the context of the G
placement of an article which embodies the foundational
value of equality."
96. Two consequences follow from the above: our earlier
assessment, that the test we are to apply in instances like the H
700 SUPREME COURT REPORTS [2011] 6 S.C.R.
A addition of clause (5) to Article 15, is not about truncation of
one activity that was previously deemed by this court to be one
of the essential features of one of the many occupations that
are a part of one of the many freedoms guaranteed in the
freedom code; and that we not only have to assess the negative
S impact, but also the positive impact of an amendment. This
follows from the realization that while we may classify aspects
important for that ship to sail towards its goals into neat
analytical categories, the ship itself, and the nation it carries
functions in accordance with the action and reaction of each
c category upon other categories. Consequently, we must take
into account the fact that the changes that are made may while
truncating one small element, may also be strengthening many
other elements, and thereby strengthening the very basic
structure of the Constitution. Thus care needs to be exercised
0 to avoid rhetorical flourishes about the importance of one small
activity that may be truncated i11 order to achieve larger
purposes. Obviously, some small activities could be of
primordial importance. Some rights may be important, but not
of primordial importance, and their importance has to be
E assessed in terms of their place in the overall context of
constitutional values, and goals.
97. If indeed one essential activity of the many essential
ones that form the freedom to engage in one of the occupations
of the many occupations that are a part of the many freedoms
F guaranteed by the Constitution, conflicts with an amendment
that intends to strengthen the process of achievement of one
of the main navigational tools and thereby the goals of the
nation-state itself, should such an amendment be declared to
be unconstitutional and against the basic structure? Shouldn't
G one also look at the damage that such a declaration can cause
to many of the other basic features of the Constitution, and also
the loss of diverse strengths that such an amendment is likely
to impart to many other essential or basic features of our
Constitution? We opine that by not undertaking an assessment
H of such factors we would almost certainly lead to erroneous
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 701
& ORS. [B.SUDERSHAN REDDY, J.]
judgments that would destroy the basic structure of the A
· Constitution. In the present context what is involved is a judicial
·review of an amendment to the Constitution that seeks to
strengthen the egalitarian aspects of our social order.
Consequently, the conflict, in th~ instant case, has to be
evaluated in terms of whether disallowing the amendment might B
damage, significantly, the prospects of promoting intrinsic and
inherent parts of our equality code - the egalitarian and social
justice components - that are essential elements of our basic
structure. Such a test would give us a more nuanced
appreciation of how setting aside, as violative of the basic c
structure, the provisions of clause (5) of Article 15 with respect
to admissions to non-minority unaided educational institutions,
would impact our Constitution, as a fundamental instrument in
country's governance.
98. Consequently, in evaluating whether the provisions of D
clause (5) of Article 15 with respect to unaided private
educational institutions violate the basic structure doctrine the
questions to carry out the test would be as follows: (1) the place
of clause (5) in Article 15 in the context of the equality code;
(2) its importance with respect to the Constitution as an E
instrument of governance, including the mandatory, though not
justiciable, provisions of Directive Principles of State Policy,
and the goals of ensuring dignity for all citizens, with fraternity
amongst groups of them, thereby ensuring the unity and integrity
of the nation; and (3) an assessment of the importance of the F
right of the educators to only admit students based on their
choice, and thereby, also possess, the consequential right to
disregard the impact of social, educational, cultural and
economic disadvantages suffered by groups and individuals in
those groups, in terms of access to higher education, and the G
damage that such a disregard might do to the very purpose of
the occupation, and the broader objectives of the nation that
such an occupation is to serve.
H
702 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 99. It is now a well settled principle of our constitutional
jurisprudence that Article 14 does not merely aspire to provide
for our citizens mere formal equality, but also equality of status
and of opportunity. The goals of the nation-state are the securing
for all of its citizens a fraternity assuring the dignity of the
B individual and the unity of the nation. While Justice - social,
economic and political is mentioned in only Article 38, it was
also recognized that there can be no justice without equality of
status and of opportunity {See M. Nagaraj). As recognized by
Babasaheb Ambedkar, at the moment that our Constitution just
c set sail, that while the first rule of the ship, in the form of formal
equality, was guaranteed, inequality in terms of access to social
and economic resources was rampant and on a massive scale,
and that so long as they individually, and the social groups they
were a part of, continue to not access to social and economic
resources that affords them dignity, they would always be on
0
the margins of the ship, with the _,ver present danger of falling
off that ship and thereby never partaking of the promised goals
of that ship. Babasaheb Ambedkar with great foresight
remarked that unless such more fundamental inequalities, that
E foster conditions of injustice, and limit liberty of thought and of
conscience, are eradicated at the earliest, the ship itself would
be torn apart.
100. In this regard, it was recognized early on as we, as a
nation-state, set sail that while revolutionary change, using the
F force and might of the State. might actually bring about the
realization of that state of equality much faster. However, it was
also recognized that the violence it would unleash could
potentially destroy our nation-state itself, and the end goal may
be the creation of a State that would not be conducive for other
G cherished values of peace, harmony, co-existence, and a
democratic set up in which reasoned and reasonable argument
and debate would inform our social, political and economic
choices. Some may say that this was a compromise, that in
fact the framers of our constitution made the wrong choice, and
H that we should have opted for a revolutionary mode of change,
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 703
& ORS. [B.SUDERSHAN REDDY, J.]
if necessary by shedding of.bloodshed of our own people. A
Some others argue that we should have opted for a pure
market economy, right from the beginning, so that the inefficient
governmental regulations would not have hindered our
economic progress. However, they seldom have answers as
to when, or over wh.at time frame could it be conceived that a B
state of equality of status and opportunity, and social, economic
and political justice would inform all walks of our lives, so that
each and every citizen would be enabled to lead a life with
dignity, that both promotes fraternity and also is promoted by
such a fraternity, and of active participation, to the fullest extent c
of their natural talents, to participate in full measure in the making
of choices, social, political and economic. Nor do the free
market proponents answer whether the operation of the laissez-
faire free markets would not lead to a perpetuation of ever
widening disparities between the haves and the have-nots. D
Historical human experience militated against a trust in any
such answer even if it were given.
101. Consequently, the State was given the responsibility
to balance the exigencies of the needs, between social justice
and formal equality, between a command and control economy E
and a private sector with freedom to make its choices within a
regulated environment, keeping in mind. the larger needs of the
nation, between the imperative to promote economic growth,
and development in its classical sense, in which the progress
of people was measured on all dimensions of human dignity. F
Indeed, these imperatives of statecraft, of governance of the
nation state, were even transcribed into fundamental, though
non-justiciable, Directive Principles of State Policy. The fact that
they were made non-justiciable was not to deny their absolute
essentiality, but rather that the legislatures, and the executive G
under the supervision of the elected representatives, were best
placed to make choices with regard to issues of policy, while
the judiciary endowed with the responsibility of interpreting and
upholding the Constitution. An irroortant and particular aspect
of our Constitution that should always be kept in mind is that H
704 SUPREME COURT REPORTS [2011] 6 S.C.R.
A various aspects of social justice, and an egalitarian social order,
were also inscribed, not as exceptions to the formal content of
equality but as intrinsic, vital and necessary components of the
basic equality code itself. To the extent there was to be a
conflict, on account of scarcity, it was certainly envisaged that
B the State would step in to ensure an equitable distribution in a
manner that would be conducive to common good;
nevertheless, if the state was to transgress beyond a certain
limit, whereby the formal content of equality was likely to be
drastically abridged or truncated, the power of judicial review
c was to curtail it. However, as long as the policy initiatives of
the State were in consonance with principles of equity and
justice inherent within the equality code, and indeed even the
freedom code, via Article 21 's guarantee of the right to life, and
for promotion of freedom of expression and thought, especially
to promote excellence in our debates and arguments in the
0
political sphere so that democratic richness could be better
served, or were framed in pursuance of the Directive Principles
of State Policy, that were based on reasonable and intelligible
classifications, the courts were to have no further place in
entering the field of policy choices. The courts could of course,
E also, impose positive constitutional obligations on the State,
where the abnegation of those positive and affirmative
obligations, encoded within fundamental rights itself, were so
gross as to constitute a fraud on the face of the Constitution.
F 102. Given the magnitude of the task of the State, and
immense human tragedies that could continue to occur
unabated or even increase, and conditions of inequalities could
intensify even further, beyond the unconscionable levels at which
they already are, it can only be surmised that the power of the
G State to frame policies in furtherance of the national goals,
including the goals of social justice, achievement of human
dignity of all people and groups of people, improved access
to better articulation of thoughts and aspirations by individuals
and groups of people in the democratic processes and in social
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 705
& ORS. [B.SUDERSHAN REDDY, J.]
choices made in their communities, and equality of status and A
opportunity with respect to social, economic and physical
resources i.e., all material resources that are useful for
productive activities, as granted and used within the limits of
the constitutional vision and design, to achieve such tasks to
be commensurate, is indeed an essential element of B
governance. Derogation of such powers, through a whittling
down by judicial fiat, below the level at which the Constitutional
structure, provisions and vision provides would necessarily be
an alteration of the very identity of our Constitution.
103. In a recent decision, GVK Industries Ltd v. /T029 by C
a Constitutional Bench, it was held:
"One of the foundational elements of the concept of basic
structure is it would give the stability of purpose, and the
machinery of Government to be able to pursue the D
constitutional vision into indeterminate and unforeseeable
future .... Our Constitution charges various organs of the
State with affirmative responsibilities of protecting the
interests of, the welfare of and security of the nation.
Legislative powers are granted to enable the E
accomplishment of the goals of the nation ...... .
Consequently, it is imperative that the powers so granted
to various organs of the State are not restricted
impermissibly by judicial fiat such that it leads to inabilities
of the organs of the State in discharging their constitutional F
responsibilities. Powers that have been granted, and
implied by, and borne by the constitutional text have to be
perforce admitted .. ."
104. To be sure, powers granted to the State are not
unlimited, and indeed our constitutional jurisprudence specifies G
that Part Ill is one such zone of limitation. The rigour and
discipline of fundamental rights, granted to citizens are to be
the checks on the power of the State. Fundamental rights are
29. c2011) 4 sec 36. H
706 SUPREME COURT REPORTS [2011] 6 S.C.R.
A indeed vital for the survival of our society, and provide
guarantees that protect our citizens against totalitarianism, are
conducive for full expression of human creativity, and in fact
foundational for human dignity. Further, the substance of justice
is inscribed into such fundamental rights, that are both
B substantive and procedural and are available to all the citizens,
along with powers granted to the State to realize social justice
and real and "in facf' equality of status and opportunity for those
who are disadvantaged. Consequently, it cannot be taken to
mean that the zone of limitation would then operate to frustrate
c the obligations of the State, to achieve goals of social justice
and egalitarian order, by placing primordial importance on
formal equality and freedom. Formal rights of some power
cannot become the foundation to whittle away powers that are
necessarily implied in order to achieve national goals. The
question is of balance, and it is the act of balancing between
0
the compulsions cast upon the State by the moral, political and
legal imperatives of the status of vast chunks. of our people in
disadvantaged and deprived positions that could only be
deemed to be egregious and unconscionable by any notions
E of empathetic conscience, and the imperatives that all the rest
also be provided meaningful levels of protections guaranteed
by fundamental rights. It is not without reason that Fundamental
Rights and Directive Principles of State Policy along with the
grant of power to the State to achieve intrinsic egalitarian and
social justice aspects inscribed on many of the fundamental
F rights themselves, that have been called the twin wheels of the
chariot of national progress. In this regard it has been held in
Keshavananda that harmony between Directive Principles of
State Policy and Fundamental Rights is one of the most
important of elements of the basic features or structures of the
G Constitution.
105. In this respect, the placement of clause (5) of Article
15 in the equality code, by the 93rd Constitutional Amendment
is of great significance. It clearly situates itself within the broad
H egalitarian objectives of the Constitution. In this sense, what it
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 707
& ORS. [B.SUDERSHAN REDDY, J.]
does is that it enlarges as opposed to truncating, an essential A
and indeed a primordial feature of the equality code.
Furthermore, both M. Nagaraj and Ashoka Kumar Thakur stand
for the proposition that enlargement of the egalitarian content
of the equality code ought not to necessarily be deemed as a
derogation from the formal equality guaranteed by Article 14, B
15(1) or 16(1). Achievement of such egalitarian objectives
within the context of employment or of education, in the public
sector, as long as the measures do not truncate elements of
formal equality disproportionately, were deemed to be inherent ·--
. parts of the promise of real equality for all citizens. As stated c
succinctly in M. Nagaraj, it is an issue of proportionality.
·concept of proportional equality expects the State to take
affirmative action in favour of disadvantaged sections of the
society within the framework of liberal democracy" and further
that "[U]nder the Indian Constitution, while basic liberties are D
guaranteed and individual initiative is encouraged, the State
has got the role of ensuring that no class prospers at the cost
of other class and no person suffers because of drawbacks
which is not of his but social." With regard to distribution of
social opportunities and social benefits, Kapadia J. (as he then E
was) notes that some define "social justice in terms of rights",
and some others, like Friedrich Hayek in terms of "desert"
without any regard to the relative advantages or disadvantages
as between individuals, and some others, socialists, on the
basis of Aeeds. With regard to these three different rationale,
this Court recognized that all three have to be accommodated F
under the equality code, with those fulfilling the "desert based"
criteria located under formal equality zone, and those fulfilling
the ~need based" or the "disadvan~ged based" criteria under
the zone covered by proportional equality. To this we need to
add another important point. The critical aspect of the G
authenticity of constitutional claims of the disadvantaged, on
whose behalf State exercises its power, is the fact that it is
social circumstances which have prevented those individuals
from performing to their full potential, and thereby compete on
a level playing field with those who might satisfy the "desert H
708 SUPREME COURT REPORTS [2011] 6 S.C.R.
A based" criteria. In fact the very notion that unequals ought not
to be treated as equals is also founded on the notion that those
with lesser or lower background opportunities could not be
expected to match the performance of those with much better
opportunities. The fact that it is the State that seeks to enhance
B through its policies, such rights of disadvantaged, because it
has the duty to ensure their realization, cannot be taken to mean
that every element of every individual right of the less
disadvantaged could be used to frustrate the realization of
those rights.
c 106. A brief historical excursus, into our constitutional
jurisprudence, would also be necessary at this stage to realize
that the egalitarian conception is inbuilt in the equality code. In
M.R. Balaji v State of Mysore30 , Article 15(4) was treated as
an exception to Article 15(1). However, in Devadasan v. Union
D of lndia 31 , decided a year later, the Court found that
reservations to appointments and posts would not violate Article
14. Devadasan, followed the ruling of M.R. Balaji and held that
excessiveness of reservations under Article 16(4) is an issue
to be recognized. Subba Rao, J, ii his dissenting opinion
E opined that Article 16(4) was not an exception but "preserved
a power untrammeled by the other provisions of the Article."
The decisive break came in State of Kera/av. N.M. Thomas32
in which Article 16(4) was held to not be an exception to Article
16(1 ), laying down the' principle that State action in pursuit of
F egalitarianism cannot in principle be seen as antithetical to
broader codes of equality, but rather a means to realize true
equality of status and opportunity amongst hitherto excluded
groups. This position found its resounding acceptance in Indra
Sawhney v Union of lndia33 , in which it was held in no uncertain
G terms that egalitarianism is an intrinsic element of conception
of equality under Articles 14.
30. AIR 1963 SC 649.
31. AIR 1964 SC 179.
32. AIR 1976 SC 490.
H 33. (1992) Supp (3) sec 211.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 709
& ORS. [B.SUDERSHAN REDDY, J.]
107. A purely technical argument may be made that this A
Court in Indra Sawhney had reflected upon egalitarianism in the
context of Article 16(4) and public employment, and hence
ought not to be seen as a part of our constitutional jurisprudence
with respect to admissions to private unaided educational
institutions. This may be a case of splitting hairs to deny the B
validity of an over-arching principle. In countless cases, involving .
the private sector, this Court has held that legislation to achieve
social and economic justice cannot be held to be a violation of
fundamental rights. (See: State of Kamataka v Ranganatha
Reddy34) What they could be and ought to be tested on was c
the anvil of reasonableness of classification, and extent of
intrusion, where the Constitution itself did not specifically
provide for untrammeled power to completely eliminate the
private sector from a particular field of activity. This Court's
decisions in M. Nagaraj, and equally importantly, Ashoka D
Kumar Thakur, have unequivocally held, based on Indra
Sawhney, that the concept of egalitarianism is an essential and
vital element of the equality code, and in Ashoka Kumar Thakur
that principle was applied in the context of education. The Court
refused, in Ashoka Kumar Thakur, to look at whether clause (5)
of Article 15 as applied to non-minority private unaided colleges E
would violate the basic structure, on the ground that no private
unaided college was before it. However, that does not mean
that the principles enunciated in Ashoka Kumar Thakur, that
egalitarianism was an intrinsic part of our equality code with
respect to the field of education could be limited only with F
respect to public and aided institutions.
108. We opine that the same principles which this Court
found to be applicable in finding egalitarianism to be a part of
the equality code, at the level of being essential features G
informing the entire equality code, per force have to also be
applied to the context of private sector unaided educational
institutions. When we speak of egalitarianism being an
34. (1977) 4 sec 471.J H
710 SUPREME COURT REPORTS [2011) 6 S.C.R.
A essential and a necessary component of the equality code,
which is a finding that this Court arrived at in Indra Sawhney,
M. Nagaraj and in Ashoka Kumar Thakur, we cannot in the
same breath then turn around and say that the same concerns,
of national purpose, goal and objectives that inform the
B constitutional identity miraculously disappear in the context of
the private sector. It is indeed true that the extent of State
involvement in the field of higher education has dramatically
declined on account of its own financial position. At least a part
of the problem of the financial situation of the State could be
c reasonably linked to increasing privatization and liberalization
of the economy, and one of the essential elements of that
process of privatization has been the demand of the private
sector that the State reduce its deficits, even as tax rates were
cut, by reducing its involvement in various social welfare
activities. This has had an impact on the ability of the State to
0
invest as much as it could have in education, including higher
education. An essential understanding was that because the
private sector would expand even in areas such as higher
education, the burden on the State o' providing such services
would decline. The burden of the &1ate does not comprise
E merely of the burden of its financial outlays. The burden of the
State obviously also comprises of the positive obligations
imposed on it, on account of the egalitarian component of the
equality code, the directive principles of State policy, and the
national goals of achievement of an egalitarian order and social
F justice for individuals and amongst groups that those individuals
are located in. If the State had clearly articulated that its goal
was to withdraw from such crucial and vital fields, such as higher
education, and that it was also not expecting the private sector
to carry any of the burdens of ensuring an egalitarian order and
G realize the goal of social justice in at least some measure, then
the dimensions of constitutional litigation on that front could very
well have taken a different shape, and questions about whether
such actions constitute a fraud on the face of the Constitution
could certainly have gained great salience.
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 711
& ORS. [B.SUDERSHAN REDDY, J.]
109. Certainly, the State has the power under clause (6) A
of Article 19, to totally or partially exclude the participation of
private sector in the field of higher education. As TMA Pai
stated, having allowed the private sector into the field of
education, including higher education, it would be
unreasonable, pursuant to clause (6) of Article 19, for the State B
to fix the fees and also impose reservations on private unaided
educational institutions. Nevertheless, if we take into
consideration the width of the original powers under clause (6)
of Article 19, one would necessarily have to find that the State
would at least have the power to make amendments to the c
·Constitution to partially resurrect some of those powers that it
. had possessed to control access to higher education, and
achieve goals of egalitarianism and social justice. What the
State had done was to allow private sector to function in the
field of higher education, to supplement the roJe of the State in 0
the field which has been recognized even in TMA Pai. The
power of the State to allow such participation of the private
. sector could only have existed if the State had the power to
devise policies based on circumstances to promote general .
welfare of the country, and the larger public interest. The same E
cannot be taken to mean that a constitutional amendment has
occurred, in a manner that fundamental alteration has occurred
in the basic structure itself, whereby the State is now denuded
of its obligations to pursue social justice and egalitarian ideals,
inscribed as an essential part of our constitutional identity, in
those areas which the State feels that even resources in the F
private sector would need to be used to achieve those goals.
The argument that the policies of liberalization, privatization and
globalization (LPG) have now cut off that power of the State are
both specious, and fallacious. Such policies are only instances
of the broader powers of the State to craft policies that it deems G
to serve broader public interests. One cannot, and ought not
to deem that the ideologies of LPG have now stained the entire
Constitutional fabric itself, thereby altering its very identity.
110. In the first place, it is not a completely well accepted H
712 SUPREME COURT REPORTS [2011] 6 S.C.R.
A principle that liberalization, privatization and globalization has ·
led to the welfare or that it has been an unalloyed good of
everyone. As very prominent thinkers and policy specialists
have been arguing for nearly two decades, that the unthinking
and extreme beliefs in LPG have led to many deleterious
B impacts globally, cannot be ignored. (See the work of Nobel
Laureate, Joseph Stiglitz: Globalization and its Discontents35).
Another Nobel Laureate, Kenneth Arrow, and renowned
economists such as Samuel Bowles and Steven Durlauf have
also posited that the ideological notions that all governmental
c programs to achieve egalitarian goals are ineffective has
fundamentally eroded the very culture of nations, and the moral
and constitutional commitments of the policy makers to pursue
,. such goals, with the "dismal prognosis of immutable
inequality. 36" Moreover, it is also very well recognized that
0 markets, instead of eradicating discriminations and
disadvantages, may in fact perpetuate the same. (See Cass
R. Sunstein, "Free Markets and Social Justice"37 , and also
Reservation and Privc:te Sector: Quest for Equal Opportunity
and Growth, Ed. Sukhadeo Thorat, Aryama and Prasant
NegP8). The falsity of the knee jerk beliefs that markets are
E necessarily efficient, and will necessarily find optimal and just
solutions for all problems, was again provided by the recent
global financial crisis. That unregulated laissez faire free
markets would only lead to massive market failures, even with
respect to those aspects in which markets are supposed to
F function efficiently, such as wealth generation has to be
accepted as a fundamental truth. With respect to other social
values and goals, it has also been shown that the complete
evisceration of the power of the State to regulate the private
sector would lead to massive redistributions of incomes. assets
G and resources in favour of the few, as against the multitude,
35. W.W. Norton and Company (2002).
36. Meritocracy and Economic Inequality, Oxford University Press.
37. Orford University Press (1997).
H 38. Rawat Publication (2005).
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 713
& ORS. [B.SUDERSHAN REDDY, J.)
thereby generating even greater inequalities. This would also A
suppress the ability of the State to exercise moral authority, and
force, to keep competing interests, spread across groups,
regions, and classes, from degenerating into a war of all
against all. The necessity of such a role for the State should
not be doubted, nor its Constitutional duty whittled down. This B
potential danger, and consequences, of evisceration of the role
of the State was anticipated by the farmers of our Constitution.
That is the reason why, the Preamble specifically articulates that
ensuring the dignity of human beings, and fraternity amongst
groups of people, to be vital for the integrity and security of the c
nation.
111. Article 38 of the Constitution mandates that "the State
shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the D
institutions of national life." This is a clear transcribing of a
promise made in the Preamble, to all the people of our country,
and in particular those who were socially disadvantaged, and
who continue to be disadvantaged, that justice shall inform all
institutiorls-olQur national life. What does Article 38 mean, when E
it talks about "institutions informing our national life"? Clearly
higher education, and more particularly professional
educational institutions imparting education in the medical,
technical & engineering, scientific, managerial and legal fields,
are to be recognized as being vital to the national well being, F
and determine the character of life, and social order throughout
the nation. Each and every particular educational institution is
a part of a large scale national endeavour to educate our
youngsters. The word "institution" is capable of many meanings.
It could be used in a narrow sense; however, ·it is also used, G
for instance, to refer to a broad class of fields of human and
organizational endeavours: we talk about press and the media
as an institution, we talk about legislative field as an institution,
we talk about the executive as an institution, and indeed we talk
about the judiciary, and the organizations engaged in the act H
714 SUPREME COURT REPORTS (2011) 6 S.C.R.
A of dispensing justice, collectively as an institution. We talk about
universities, and seats of higher learning, collectively as an
institution. At this level of generality, certainly the entire field of
"higher education" is to be conceived as an institution informing
our national life. The educated youngsters coming out of the
B portals of our each individual college enter into jobs that may
require different degrees of discretionary judgment, which in
turn may also affect the lives of other people, including those
in socially and educationally disadvantaged groups.
Consequently, we have to necessarily hold that Article 38
c necessarily includes within its coneeption of "institutions
informing our national life", all institutions that perform the role
of imparting higher education.
112. However, we must hasten to add that this conception
of social justice is to be found not just in Article 38, in part IV
D of our constitution. The same concern for social justice is also
reflected in Clause 2 of Article 15 which states that: "No citizen
shall, on grounds only of religion, race, caste, sex, place of birth
or any of them, be subjected to any disability, liability, restriction
or condition with regard to - (a) access to shops, public
E restaurants, hotels and places of public entertainment; or (b)
the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds, or
dedicated to the use of general public." Further, Clause 4 of
Article 15 specifies that "Nothing in this article or in clause (2)
F of Article 29 shall prevent the State from making any speciat
provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and·
Scheduled Tribes".
113. The purport of Article 15 (2) can be gathered from
G the Constituent Assembly debates. Babasaheb Ambedkar
elucidated on the same saying that "To define the word 'shop'
in the most generic term one can think of is to state that 'shop'
is a place where the owner is prepared to offer his service to
anybody who is prepared to go there seeking his service .....
IH
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 715
& ORS. [B.SUDERSHAN REDDY, J.]
Certainly it will include anybody who offers his services. I am A
using it in a generic sense. I should like to point out therefore
that the word 'shop' used here is not used in the limited sense
of permitting entry. It is used in the larger sense of requiring
the services if the terms of service are agreed to."39 In as much
as education, pursuant to TMA Pai, is an occupation under B
sub-clause (g) of clause (1) of Article 19, and it is a service
that is offered for a fee that takes care of all the expenses of
the educational institution in rendering that service, plus a
reasonable surplus, and is offered to all those amongst the
general public, who are otherwise qualified, then such c
educational institutions would also be subject to the discipline
of clause (2) of Article 15. In this regard, the purport of the above
exposition of clause (2) of Article 15, when read in the context
of egalitarian jurisprudence inherent in Articles 14, 15, 16 and
Article 38, and read with our national aspirations of establishing D
a society in which Equality of status and opportunity, and
Justice, social, economic and political, would imply that the
private sector which offers such facilities ought not to be
conducting their affairs in a manner which promote existing
discriminations and disadvantages.
E
There are two potential interpretations of the use of the
word "only" in clause (2) of Article 1540 •• 0ne could be an
interpretation that suggests that the particular private
establishment not discriminate on the basis of enumerated
grounds and not be worried about the consequences. Another F
interpretation could be that the private establishment not just
refrain from the particular form of overt disc~imination but also
ensure that the consequences of rules of access to such private
establishments do not contribute to the perpetration of the
unwarranted social disadvantages associated with the G
functioning of the social, cultural and economic order. Whether
sub-clause (a) of clause (2) of Article 15 is self-executory or
39. Constitutent Assembly Debates - Vol. VII.
40. Mahendra P. Singh, • V.N. Shukla's Constitution of India", 11th Ed. (Eastern
Book Company, 2008) H
716 SUPREME COURT REPORTS [2011] 6 S.C.R.
A not is irrelevant in the context of reservations. If the State does
enact "special provisions" for the advancement of socially and
educationally backward classes, it does so in order to prevent
the perpetuation of social and educational backwardness in
certain classes of people generation after generation.
B
114. If a publicly offered service follows a particular rule
that achieves the same or similar consequences as the
proscribed discrimination, and tends to perpetuate the effects
of such discrimination, then it would violate the principle of
C substantive equality. In the case of admissions to colleges, it
is an acknowledged fact, in both TMA Pai, and in fact even by
Bhandari J., in his opinion in Ashoka Kumar Thakur, that the
test of merit, based on some qualifying examinations or a
common entrance test, actually is particularly prone to
rewarding an individual who has had access to better schools,
D family lives, social exposure and rr.eans to coaching classes.
This would mean that many of the youngsters, who hail from
disadvantaged backgrounds are severely handicapped in
demonstrating their actual talents. This would be even more so
in the case of Scheduled Castes and Scheduled Tribes. Given
E that social and educational, background of the parents, and of
general community members, has an important bearing on how
well the youngsters learn and advance, it would only mean that
complete dependence on such tests which do not discriminate
and grade, in terms of real merit relative to peers in similar
F circumstances, but on the basis of so called absolute abilities,
we would end up selecting more students from better social and
educational backgrounds, thereby foreclosing or substantially
truncating the possibility of individuals in such disadvantaged
groups from being able to gain access to a vital element of
G modern life that grants dignity to the individuals, and thereby
to the group as a whole, both in this generation, and in future
generations. In light of the specific command of Article 38, of
infusing our institutions of national life with social justice, we
hold that a proper construction of clause (2) of Article 15 would
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 717
& ORS. [B.SUDERSHAN REDDY, J.]
in fact be to prohibit a complete dependence on such context A
(social and educational backwardness) insensitive tests. When
viewed against this perspective, it would have to be discerned
that reservations based on social and educational
backwardness would in fact promote the selection of those who
are truly meritorious amongst each group, on account of their B
demonstrated ability to be in the higher rungs of achievement
within comparable situations of life's circumstances and
disadvantages. Such systems, with the same normative
imperatives are used in other countries, and in fact more
economically successful countries, with a demonstrated record c
of immense scientific and technical achievements over the past
hundred years: for example, the United States of America. Peer
group norm referenced grading is extensively used there. The
idea is simple: that given a minimal level of achievement of
competence, grading as between similarly situated and
0
provisioned individuals would reflect both true talents and also
individual variations in behaviour such as hard work, diligence,
the ability to overcome challenges etc.
115. Even if one were to assume that at some conceivable
level, some youngsters from Socially and Educationally E
Backward Classes, or Scheduled castes and Scheduled Tribes
are actually relatively less proficient, at the entry point, than those
belonging to the upper crust of India, there could be other
mitigating factors. It is perfectly plausible to assume that
youngsters who were socially deprived of .appropriate F
scholastic content in earlier years, do make it up and narrow
the gap over time. 41 ·
116. In addition, there are many other advantages that one
could conceptualise that could emanate from social G
redistribution, of access to higher education, including
professional education, in favour of disadvantaged groups. One
talks about a knowledge economy that requires us to
41. Introduction in Meritocracy and Economic Inequality, ed by Arrow, Samuel
Bowles and Steven Durlaf. .H
718 SUPREME COURT REPORTS [2011] 6 S.C.R.
A continuously ensure that we push the brightest amongst all of
us to the top or be available in the labour market. However, the
supply constraints of skilled labour, including professionals, and
college educated graduates is also a major problem. We start
with one perfectly reasonable assumption that undergirds all of
B our equality jurisprudence: that we would find, as a matter of
pure genotype, equal levels of talent, and abilities, including
those needed for scholastic abilities, in all social groups, and
other divisions such as religion or gender. This is not just a
scientifically proven fact, notwithstanding the efforts of
c misguided racist and junk science, but also a veritable
ontological and ethical assumption. This would mean that unless
this pool is expanded, to identify and provide opportunities for
the best performers across all those groups, we would not have
exploited our human resources as well as we could. This would
in tum mean that the economic gains that were possible if the
0
imperfections in the supply side of the labor market had been
overcome, have been lost on account of such imperfections,
and also would continue to be lost in the future. 42
117. In addition to the above, we also need to be very
E careful about certain arguments that are raised in the context
of reservations. These arguments suggest that reservations
would weaken India's capacity to innovate, and retain its
competitive edge in the high tech industries. It would appear
that there are at least two problems associated with this. One
F problem seems to be the implicit assumption that those who
have benefited from reservations have not participated, and
that such students in the future will not participate, in innovative
contexts. No empirical data, which has been systematically
collected, and is free of implicit cognitive biases against
G reservations, to the best of our knowledge, has ever been
placed before any court of law. To the contrary, proponents of
reservations point out to the fact that certain regions of the
country, which have had reservations for nearly hundred years,
42. Sukhadeo Thorat, Aryama and Prasant Negi (Eds.) Quest for Equal
H Opportunity and Growth (2007).
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 719
& ORS. [B.SUDERSHAN REDDY, J.]
in fact have witnessed an explosion of private unaided colleges A
in technical & engineering, and scientific fields, and also
arguably are the regions i.n which high tech industry is
flourishing. The argument that academic standards in our
institutions of higher education need to be high may be valid;
nevertheless, we would also need to be careful in assessing B
whether any decline in standards, if any, has been on account
1 of students in reserved categories entering institutions of higher
· education, or on account much wider systemic weaknesses in
the field of higher education, including the way our universities
1
are managed, and the levels of research conducted or not c
conducted. Without separating such causal factors, it would be
constitutionally impermissible, and indeed unethical to lay the
blame for any loss of academic standards on students in
reserved categories.
118. Setting aside the question of whether candidates who D
have been enabled to secure admission to professional
colleges have participated in innovation in the high tech context,
we also address a morefundamental issue. The very notion of
innovation implicit in such arguments reveals a fundamental
flaw. Innovation occurs across diverse fields, in diverse contexts, E
and with respect to diverse social needs. Two aspects need
to be recognized in this. There is a fundamental distinction
between invention and innovation. An invention is a new
technical solution to a specific technical problem. Joseph
Schumpeter43 distinguishes this from innovation, which implies F
productisation of that technical solution, in the form that actually
meets the needs of customers or consumers, located across
various regions, with varying degrees of specificity. In order to
be able to innovate, there is a need to ensure that the
innovation process is informed about the social needs, G
circumstances, and cultural factors that could affect the
effectiveness of the innovation in the field. Within the universal
class of innovations one would also find need to innovate in a
manner that meets the requi:-ements that are specific to
43. Capitalism, Socialism and Democracy, Martino Fine Books (2010); H
720 SUPREME COURT REPORTS [2011] 6 S.C.R.
A geographic area, particular social group or even according to
the level of prior technological adaptation in particular facet of
social or economic life of a community. Some technological
inventions, say general technologies, may not need much of
user inputs, and a one size fits all solution may be fine for most
B people. However, some innovations may need to be highly
specific, and tailored to specific circumstances. Another layer
of complexity could be visualized: innovation, particularly when
it is based on specific information, that is more liKely to be
gained through long years of exposure to specific crafts,
c problems, social patterns etc. Such information tends to be
"sticky" - i.e., it is not easily specifiable and transferable, is
specific to people who actually have had the relevant exposure,
and may need to be addressed at the location of the problem.
Further, it would also mean that unless the putative innovator
actually knows what the problems are, in a region, or specifically
0
to a community, he or she would not even know that the problem
really exists to begin the process of adapting technical
inventions to solve those particular problems. In as much as the
innovator does not belong to such communities, even if they are
broadly aware of the problem, they may not have sufficient
E "sticky" knowledge about it to innovate an appropriate product
or service or solution to effectively solve such problems. (See:
Eric von Hippel, Democratizing lnnovation44)
119. Given above, we address the issue of various
F innovations that may be required at the lower levels of social
strata in India. One may need to apply technology for a particular
localized problem, say in remote villages, such as a network
or a web interface that allows women to pictorially navigate
certain sites to find out the best prices for their produce. To
G design such a web interface, the designer would need to know
the language of the end user, as well as the particular culture,
and levels of cultural identification of the end users. Additional
factors may also be surmised such as knowledge of cultural
variations, particular social mores and problems emanating
H 44. MIT Press (2006).-
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 721
& ORS. [B.SUDERSHAN REDDY, J.)
from such mores. Would a person who has a broad exposure A
to emerging or new technologies, as well as the level of
knowledge that is imparted at graduate level engineering
courses, and who is also more aware of the local problems, or
community specific problems be in a better position to engage
in the innovative tasks appropriate for such a situation? It is B
entirely conceivable that the youngsters who have entered
collegiate level courses, based on reservations, may be more
adept at adapting existing technical solutions to particular
problems because of their background. Most certainly one
could conceive of situations in which such youngsters by virtue c
of their social backgrounds may be the only ones who would
have the knowledge that a problem exists, or the cultural and
emotional commitment to acknowledge that such problems also
need to be addressed and solved, for both personal gain as
well as social gain. How do we compare the social value of D
such activities, which may be getting enhanced on account of
youngsters from socially and educationally backward classes
and Scheduled Castes and Scheduled Tribes being admitted
to colleges, both professional and non-professional, as against
the value generated from being employed in some multi- E
national company? Why should the Constitutional discourse
undervalue the importance of the former? Are the lives of ·
people from socially disadvantaged backgrounds to be
deemed to be not a constitutional concern? The fact that the
former may not be quantifiable, or in popular and elite culture
not acknowledged, does not mean that they are less valuable. F
120. We can conceive tremendous gains in another
respect also. Increasingly, with technological advances, the
choices made by societies with respect to which technology is
chosen for implementation, which technology is discarded, G
which technology is promoted and the costs, both direct and
indirect, such as environmental externalities, would have a
tremendous impact on social and economic aspects, that
range from global to local in impact. The implementation of
such technologies has an impact on multiple constitutional H
722 SUPREME COURT REPORTS [2011) 6 S.C.R.
A rights, from Article 21 to issues of hidden bias against the lower
classes. If the people in these socially and educationally
backward classes, and in Scheduled Castes and Tribes are
to engage in these debates, about the choices being made,
assess the impacts on their own lives, and articulate, then surely
B they would also require youngsters from amongst themselves
who could understand the vast changes taking place in the
socio-economic organizations, on account of rapid
technological changes, and explain to them, or understand them
and articulate their hopes, fears and aspirations. This would
c mean that apart from Article 21 implications for the dignity of
lives of other members of such disadvantaged groups, there
are also implications about Article 19 freedoms themselves.
These rights are extended to all citizens, and one of the
fundamental reasons why they are extended is to ensure that
every citizen is capable of engaging in a civil, reasoned, and
0
reasonable debate about social, economic and political
choices. This would obviously deepen and enrich the
democratic processes of this country, and thereby make it more
stable.
E· 121. In a recent judgment, this Court, has explicitly
recognized that the meaning and purport of each article of the
Constitution has to be gleaned from the text of the article, and
also the meaning of that text as it may be further informed and
transformed by other provisions in the other parts of the
F Constitution. The meaning and extent of a fundamental right
cannot be gleaned only from the specific text of that particular
amendment; rather it needs to be gleaned from the matrices
of inter-relationships, with other fundamental rights and
provisions in other parts of the Constitution, thereby recognizing
G the transformations effectuated on each other [GVK Industries
Limited (supra)]. In that sense, the nature of judicial review of
a constitutional amendment, in which over-arching principles
informing all of the fundamental rights have to be gleaned and
subjected to the test of abrogation of basic structure, comprises
H a particular form of constitutional interpretation in which the
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 723
& ORS. [B.SUDERSHAN REDDY, J.]
essences of each of those over-arching principles has to be A
gleaned and an amendment to the constitution has to be
evaluated as being lawful or unlawful, in terms of implied
limitations of power, as it effects those essences.
122. In light of the above we find that by the insertion of 8
Clause (5) of Article 15, the 93rd Constitutional Amendment has
empowered the State to enact legislations that may have very
far reaching beneficial consequences for the nation. In point of
fact, each and every one of the beneficial consequences we
have discussed as being possible, would enhance the social
justice content of the equality code, provide for enhancements C
of social and economic welfare at the lower end of the social
and economic spectrum which can only behoove to the benefit
of all the citizens thereby promoting the values inherent in
Article 21, promote more informed, reasoned and reasonable
debate by individuals belonging to various deprived segments D
of the population in the debates and formation of public opinion
about choices being made, and the course that political and
institutional constructs are taking in this country. Consequently
we find that clause (5) of Article 15 strengthens the social fabric
in which the Constitutional vision, goals and values could be E
better achieved and served. Or in terms of the analogy to Ship
of Theseus, Clause (5) of Article 15 may be likened to a
necessary replacement and in fact an enhancement in the
equality code, so that it makes our national ship, the
Constitution, more robust and stable. F
123. At present, statistics 45 reveal that we just about
manage to provide access to about 11 % or so of the college
going age group with access to higher education. Coupled with
this, the role of the State, which a lot of the disadvantaged G
people feel is in the hands of the upper crust (including the
creamy layer of such groups), in higher education is
increasingly dwindling in terms of seats provided through state
45. Devesh Kapur & Pratap Bhanu Mehta, Morgaging the Furture? Indian Higher
Education (2007). H
724 SUPREME COURT REPORTS {2011] 6 S.C.R.
A funding or aid. For instance nearly 85% or more of all
engineering seats are in the private sector and about 50% in
the field of medicine; and the number of aided and government
colleges in other fields have just not kept pace. If a vast majority
of our youngsters, especially those belonging to disadvantaged
B groups, are denied access in the higher educational institutions
in the private sector, it would mean that a vast majority of
youngsters, notwithstanding a naturally equal distribution of
talent and ability, belonging to disadvantaged groups would be
left without access to higher education at all. That would
c constitute a state of social emergency with a potential for
conflagration that would be on an unimaginable scale.
124. Indeed at one level the recommendation of Bhandari
J., in Ashoka Kumar Thakur that high quality institutions catering
to the primary and secondary schooling needs of socially and
D educationally disadvantaged groups, and scheduled castes and
scheduled tribes have to be increased on a war footing is a
sound one. This need has been felt for a long time and yet the
State, which a lot of those youngsters might perceive to be in
the hands of the upper crust, has not .:!one enough. However,
E the argument that access to excellent schooling for all our
children, including those from disadvantaged backgrounds,
ought to be provided cannot be turned on its head, and then
used to deny the necessity of reservations in higher education
today. Many youngsters from such disadvantaged
F backgrounds, who are getting into institutions of higher
education today on account of reservations, may at best be
characterized as only being insignificantly or at best marginally
less proficient than the students in the unreserved categories
at the starting point. If their social and educational
G disadvantages are taken into account, it would not be
unreasonable to conclude that they may in fact be more
meritorious and deserving of access to higher education. It
would be unjust to keep denying their claims for access and
justice, on promises made and unkept, and new promises that
H may take too long to fulfill, even if one were to assume that they
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 725
& ORS. [B.SUDERSHAN Rl=DDY, J.]
would in fact be fulfilled. Promises are not enough to avert A
social catastrophes.
125. One of the things that has exercised our minds has
been that in the debates in popular discourse of the elite in
India it is assumed that imposition of reservations on private
8
unaided educational institutions would have a great and
deleterious impact on the freedom of educators, i.e., those who
promote, operate, finance and teach in those private u".laided
educational institutions, to choose their own students. We hold
that granting such a freedom would by itself be the actual C
problem. Our societal hierarchy, and in fact one of the
sustaining forces of caste system, and caste like structures in
even other religious groups, apart from endogamy, lack of
relative vertical and occupational mobility, has been the
normative assumption that only some amongst us, belonging
to certain social groups, deserve to study and gain the D"
knowledge that truly provides ability to critically evaluate and
attempt to change their world. Caste system may have been
many things, but it was also about systematic exclusion from
portals of knowledge. To allow that to happen again, now, in
the garb of a right of the educator to choose his/her own E
students, and a formal pretense of non-discrimination while
turning a blind eye to the discrimination inherent in the system
of selection for entry, which does not test real talent or ability
would tantamount to a desecration of all constitutional values.
F
126. The learned Senior Counsel, also seemed to be
advocating the position that we ought to assume that TMA Pai,
as explained in P.A. lnamdar, is the final word with respect to
the content of sub-clause (g) of clause (1) of Article 19 even in
the context of a basic structure review. This we hold leads us G
into a tautological cul de sac. However, we believe the
methodology adopted by us, as enunciated in M. Nagaraj case,
• and as gleaned from our constitutional jurisprudence, would over
come such an impasse. A tautology is one in which the
assumption contains all the elements of the conclusion in a H
726 SUPREME COURT REPORTS [2011] 6 S.C.R.
A logical argument. The tautology in the basic structure review
urged upon us is this: Premise 1: Any derogation from any of
the essential features of any kind of activity guaranteed freedom
under sub-clause (g) of clause (1) of Article 19 would constitute
an abrogation of the basic structure of the Constitution; Premise
9 2: the freedom of unaided educational institutions to not be
subject to reservations with respect to admission of students
is an essential aspect of the freedom to pursue the occupation
of starting, operating, teaching in and managing educational
institutions; and ergo, Conclusion: reservations would
c necessarily destroy the basic structure of the Constitution.
127. The power of tautological arguments is that they sound
very reasonable. However, what we should look for is not the
reasonableness of the tautological arguments, within the
context of the argument itself. Rather, the structure of the
D tautological arguments have to be examined with respect to the
assumptions made, and the world that has been ignored,
before accepting such arguments to be valid and persuasive.
128. In the first place, the assum 1tion that sub-clause (g)
E of clause (1) of Article 19 protections offered to private citizens,
as enunciated by TMA Pai, and elaborated by P.A. lnamdar,
to be the ultimate word with respect to what the contents of such
activities are is inapposite, in the context of a Basic Structure
test. Notwithstanding the fact that it is acknowledged that the
F Constitution can be amended in accordance with Article 368
to take away the basis of a judgment of this Court, the
proposed methodology would have us adopting the view that
the starting point for the evaluation of impact of clause (5) of
Article 15 with respect to the basic structure would also have
G to accept the views expressed by this court in TMA Pai to be
given and deemed to be immutable, as if carved in stone.
129. In the first place, we note that in neither of the two
judgments, were features of the protections afforded to private
unaided educational institutions evaluated in terms of the basic
H structure doctrine. Except for two references, in two paragraphs
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 727
& ORS. [B.SUDERSHAN REDDY, J.)
in a judgment spanning 450 paragraphs in total, TMA Pai does A
not speak of the basic structure doctrine at all. In paragraph 8,
the said expression is mentioned, but it is a recitation of the
submissions made by one of the. litigants in the case. This
shows that in fact the basic structure doctrine was argued by
opponents of reservations as one of the grounds to deem B
reservations to be unconstitutional. The Court obviously did not
proceed on that ground. Instead, it chose to do so only on the
grounds of the contents of sub-clause (g) of clause (1) of Article
19. In terms of M. Nagaraj's ratio, what we have is a finding of
this court in TMA Pai that freedoms of private unaided c
educational institutions under sub-clause (g) of clause (1) of
Article 19 extends to the concept of being free from imposition
of reservations, but not an analysis or finding about the status
of that specific freedom, i.e., freedom to be free from
reservations, within the freedom code itself, much less an
0
analysis of how that freedom to be free from. reservations
relates to the equality code, and constitutional identity in terms
of its institutions of governance. Indeed, we do not even find
that this Court has engaged in an analysis of the relationship
of that right to be free from reservations in light of the powers
granted to the State, under sub-clause (ii) of clause (6) of Article E
19 to even abrogate, partially or wholly, the participation of
private citizens in any of the activities guaranteed by sub-clause
(g) of clause (1) of Article ·19. In as much as the issue of the
content of the freedoms of non-minority unaided institutions
came about collaterally, and were not the main issue under F
consideration, and notwithstanding the fact that this Court did
issue an authoritative ruling with respect to such institutions
under sub-clause (g) of clause (1) of Article 19. We also find
that this Court did not engage in any discussion with respect
to right to life under Article 21, nor to sub-clause (a) of clause G
(1) of Article 19 and its impact over all on the principles, and
the actual processes, of democracy, which would certainly
include within itself the rights of people of all segments, regions
and groups to possess the appropriate level of knowledge to
H
728 SUPREME COURT REPORTS [2011] 6 S.C.R.
A be able to debate, discuss and influence social, political and
economic choices of institutions. Such choices could have a
vast impact on vital aspects that inform right to life under Article
21.
130. In light of the above, we are unimpressed by the
8
arguments that TMA Pai, as explained by P.A. lnamdar also
provide the appropriate content for undertaking an "essences
of rights test" i.e., an "over-arching principles" test, as
enunciated by M. Nagaraj, to assess whether a Constitutional
amendment, such as the 93rd Constitutional Amendment,
C violates the Basic Structure. Indeed we are acutely aware that
TMA Pai, is an eleven judge bench judgment, and P.A. lnamdar
to be a seven judge bench judgment. However, the very
eloquent silence of the two benches as to whether the contents
they have read into sub-clause (g) of clause (1) of Article 19 to
D constitute a basic feature of the Constitution, is itself a clear
indication that this Court, in those judgments was not engaging
in that type of analysis. This Court, through another
constitutional bench, Islamic Academy, had also exhaustively
examined the ratio in TMA Pai, and there is not even a whisper
E therein that there is any indication in TMA Pai, that the right of
private unaided educational institutions to be free from
reservations would constitute a right of such magnitude that its
partial truncation would abrogate the basic structure of our
Constitution and change its very identity. What TMA Pai did
F was essentially to engage in a "reasonableness standard" test
based on the text of Article 19(1){g). Nothing more.
131. This Court, in P.A. lnamdar, warns us that "certain
recitals, certain observations and certain findings in" TMA Pai
G are "contradictory inter se ....... There are several questions
which have remained unanswered ... .". Certainly, the issue of
whether the State can impose reservations, on private non-
minority unaided educational institutions, pursuant to a
Constitutional amendment, are not even raised in TMA Pai.
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 729
& ORS. [B.SUDERSHAN REDDY, J.]
Moreover, while some aspects of the contents of education as A
an occupation have been noted, many other" aspects have not
' been evaluated, especially in light of the goals of egalitarian
social order, and ensuring of social justice, richness of
democratic processes and attitudes that inform them, and
ultimately dignity of vast swaths of humanity. Hence, to depend B
on the analysis in TMA Pai, with regard to the constitutional
status of the contents of the rights of non-minority unaided
educational institutions, in the context of a basic structure review
would not only be inapposite, but also lead the Court down the
wrong path. c
132. In light of the above, we are nec~ssarily compelled
to look at those unexamined aspects, including the contents of
the very occupation that is guaranteed by sub~clause (g) of
clause (1) of Article 19. This is imperative because a test of a
constitutional amendment on the anvil of the basic structure D
doctrine using the "essences of rights" test i.e., the "over-arching
principles test" is an entirely different exercise from a mere
"unreasonableness test" undertaken by this Court in TMA Pai.
133. This Court, in TMA Pai, declared the establishment E
of educational institutions by citizens to be an "occupation" as
comprehended in the text of sub-clause (g) of clause (1) of
Article 19. In doing so, the Court cited approvingly, and
extensively, from Corpus Juris Secondum. In particular, the
word "occupation" is stated to be a very "comprehensive term, F
which includes every species of the genus, and encompasses
the incidental, as well as the main, requirements of one's
vocation, calling, or business." Consequently, it would
necessarily mean that in describing "education" as an
occupation, the Court, in TMA Pai, certainly meant that it needs G
to be comprehended in its entirety, even if for the .specific
purposes of the questions it set out to answer in that particular
case, the Court did not deal with all such incidental and other
requirements of the calling.
134. The Court also cited approvingly the observations of H
730 SUPREME COURT REPORTS (2011) 6 S.C.R.
A the University Education Commission, headed by Dr.
Radhakrishnan as its Chairman, and in particular the following
is very important: "Liberal Education - All education is expected
to be liberal. It should free us from the shackles of ignorance,
prejudice and unfounded belief. If we are incapable of
B achieving the good life, it is due to the faults in our inward being,
to the darkness in us. The process of education is the slow
conquering of this darkness. To lead us from darkness to light,
to free us from every kind of domination except that of reason,
is the aim of education.(emphasis supplied)" This obviously
c implies that the darkness of ignorance, prejudice and
unfounded belief, wherever it may be found, including amongst
the socially and educationally disadvantaged classes, and
those who have been subjected to grossly inhuman deprivations
and unjust discriminations, such as Scheduled Castes and
Scheduled Tribes, has to be eliminated. Not just equality, but
0
freedom itself would lose any meaning and content, if such
darkness were to pervade amongst large swaths of our people.
Certainly, in as much as the word "occupation" comprehends
within itself all incidental, as well as the main requirements of
the vocation, we ought to reasonably be able to conclude that
E education as an occupation would certainly have to
comprehend as one of its chief goals the tasks to which liberal
education, in so far that all education is liberal education, has
to necessarily serve.
F 135. Furthermore, certain other aspects of education as
an occupation also have to be taken into account to assess the
nature of content of the rights granted to "educators" under sub-
clause (g) of clause (1) of Article 19. Note should also be made
of the fact that the Court in TMA Pai has specifically
G characterized the nature of the occupation to be "charitable",
and in fact specifically notes that private educational institutions
have been started by educationists, philanthropists etc. This
was so because "[E]ducation is a recognized head of charity."
136. A charitable activity, is also a philanthropic activity.
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 731
& ORS. [B.SUDERSHAN REDDY, J.]
Charity, the basis on which the charitable activity is undertaken, A
such as the setting up of, managing and operating educational
institutions, is defined to include the following meanings: giving
voluntarily to those in need, an institution or an organization for
helping those in need, kindness & benevolence, tolerance in
judging others and love of one's fellow men. In a similar vein, B
philanthropy involves a love of mankind46 • If one were to take a
synoptic view of history of mankind, one would realize that
educational institutions, as formal structures for learning, were
invariably started by the State, or by citizens who had a great
love for their fellow human beings. In societies which were c
homogenous, and not hierarchically ordered, this love extended
to all its members. The idea was that equipping as many
youngsters as possible with knowledge would strengthen the
society, bring in the benefits of enlightenment that darkness,
caused by ignorance, prejudices and unfounded beliefs, denies D
to the individuals as well as the society. No philanthropist, with
love for mankind, would want to educate a person who says
that he or she wants to be enlightened only for personal benefit
or for using the knowledge gained to perpetuate injustices in
the society or strengthen inequality. Of course TMA Pai, by E
declaring that reasonable fees has to be collected, to cover
capital costs, day to day operations etc., has brought in an
element of financial viability. However, one should not then view
that TMA Pai would have intended, when it accepted that
education as an occupation could only be charitable in nature,
that it would also be devoid of intrinsic and essential qualities F
such as love for mankind as the motivating factors in starting
educational institutions.
137. However, in hierarchical societies, marked by
endemic inequalities, and where hierarchy had ossified, this G
"love of mankind", which was the primary, and inherent, motive
of education as a charitable or a philanthropic occupation, was
extended only to individuals who belonged to the communities
to which such philanthropists belonged to. Time, knowledge, and
46. The Concise Oxford Dictionary (1990). . H
732 SUPREME COURT REPORTS [2011] 6 S.C.R.
A philosophical constructs that inform our love for mankind
change. Even societies in which race was used to impose
horrific economic and social conditions on those who belonged
to enslaved races, have changed. Great universities, such as
Harvard which many decades ago did not admit students from
a formerly enslaved races, or women, or those with other
disadvantages, have with the march of time recognized that the
very notion of education as a philanthropic activity would lose
its motive force, and the essentiality of its purpose, of imparting
liberal education that leads people from darkness to light and
c that is inner soul would be derogated from if individuals from
other races, or women, or those who face social disadvantages
are also not provided access. In this regard, many universities
have also come to the view that one of their essential purposes
lies in providing higher education to ensure that in every sphere
of social action, in which choices are made that impact
0
differentially on different segme::ts of the society, there be
diversity of representation from all segments of the society. This
is recognized as necessary to enrich and strengthen
democratic processes, by bringing diversity of views and
ensuring that debate occurs in a reasoned and reasonable
E manner, which in turn integrates the society and polity.
Knowledge has expanded by leaps and bounds, and not all of
it can be taught at the stage of secondary school education.
The ability to engage with this expanding knowledge, to auto-
didactically keep pace with such expanding frontiers, is
F typically provided only at collegiate level:47 This implies that
unless access is provided on a wide scale, across all swath of
the population, the debates about social, political, economic
and technological choices would be uninformed, and therefore
also likely to be unreasoned and unreasonable, thereby
G threatening the democratic process and social integration that
is vital for fraternity and unity of the nation threatened. Noting
the pernicious influence of marketplace throngs that seek to
subordinate the higher status of higher education, Frank
47. Leaming To Be: The World of Education Today and Tomorrom - Unesco
H Paris 1972.
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 733
& ORS. [B.SUDERSHAN REDDY, J.]
Newman, Laura Couturier and Jami~ Scurry write that from "the A
establishment of the first college in America in 1636, there has
been an understanding that higher education, though it clearly
provides private benefits, also served community needs .....
steadily expanded from preparation of young men for
leadership .... to preparation of a broad share of population for 8
participation in the workforce and civic life .. ." (See The Future
of Higher Education - Rhetoric, Reality and the Risks of the
Market48).
138. Moreover, great universities have also begun to
recognize that merit cannot be assessed purely on past C
performance, in exams or as revealed by grades. They
recognize that a more composite manner of evaluation ought
to be implemented. For these reasons, they look at not merely
the marks secured at the qualifying level, or aptitude tests. They
also evaluate the desirability of admitting students on the basis D
of recommendatipns of their teachers, the statements of
purposes written by prospective students, and consider many .
other factors such as background experiences. For instance a
demonstrated desire to undertake social service, or being part
of activities that demonstrate an acknowledgement of social E
responsibility are also taken into account. There are three
reasons why they do that.
139. One is that grades and marks, at the secondary lev~I
may not necessarily indicate why a youngster has scored a
certain level of marks or not, thereby not being a substantially- F
accurate measure of ability to pursue studies at the collegfate
level. The second relates to expectations of universities as to
how knowledge gained would be used by the wider society and
its impact on society. Those multiple other means provides G
them, obviously not perfectly, but a more granulated and
textured view about the background of the youngster, the
particular circumstances under which the youngster was
expected to study, and yet achieved what he or she achieved.
48. Jossey Bass, 1st Ed (2004) H
734 SUPREME COURT REPORTS (2011] 6 S.C.R.
A 140. The third is the recognition that knowledge is
generated and applied in diverse social contexts.
Consequently, from a pedagogic and educational perspective,
it is felt that having a diverse student body would enable the
scholars to interact, learn about the diversities in life, and social
8 worlds, and appreciate the diverse points of views and needs.
This obviously enhances the learning environment for students,
and is viewed as an essential component of the environment
of the university in which all students from diverse backgrounds
would study. It is viewed as a necessary component of the
C "knowledge inputs" and also an essential aspect of learning to
be. We must recognize that many Indians, essentially from the
upper crust, would not have had the opportunity to study in such
universities, which are centers of great academic excellence,
if those universities, educationists, and their philanthropists who
had financed such institutions had stuck to archaic notions of
D inherent inequality amongst huma1 beings, and insisted only on
the demonstrated ability to get high marks. Our students were
selected because they had demonstrated an ability to excel
within the background of our current socio-economic
circumstances, and their academic accomplishments may or
E may not have been equivalent to what youngsters in similar
cohorts in those nations, and indeed all across the World,
actually accomplished. It was also felt that it was important for
other students in such universities to interact with Indians, learn
about our ancient culture, our lives and our circumstances, and
F view the knowledge they were gleaning from text books,
whether sciences, social sciences or humanities, from the
perspective of entire humanity, including India.
141. Knowledge is the vital force that unites people.
G Knowledge is generated in diverse circumstances, in the
practical arenas that range from a highly technical and clinical
laboratory, to the humble farmer, or a hut dweller eking out a
bare subsistence. It is an accumulated gift of humanity to itself.
The knowledge that non-minority educational institutions seek
H to impart, is not knowledge that they have created. That
INDIAN MEDICAL ASSOCIATION v. UNION OF INOIA 735
& ORS. [B.SUDERSHAN REDDY, J.]
knowledge was shared by people who have generated such A
knowledge out of love for humanity. Knowledge is shared by
human beings all over the world out of love for humanity.
Knowledge was passed down from the dark and forgotten past,
out of love for humanity. To attempt to convert that knowledge
into "gated communities of exclusion" would be to sow the B
seeds of destruction of humanity. Non-minority educational
institutions claim that they ought to have the right to choose only
those who have demonstrated a certain level of proficiency in
tests, where the differences between those who get selected
and those who are discarded may be insignificant, or do not c
take into account the impact of differences in social and
educational backgrounds on the performances in those tests.
They also claim the right to be free from any state based
imposition of reservations, thereby denying any social
responsibility in ensuring that those who are the best within the D
socially and educationally backward classes, and Scheduled
Castes and Scheduled Tribes. To claim a right to distribute it
only to a few, who are selected on the basis of tests which do
not reveal the true talents spread across diverse groups, and
communities in this country, is to destroy the very foundation
E
by which such non-minority educational institutions are given
access to knowledge. To partake of knowledge, from the
common pool, that is a gift of humanity, including our common
ancestors, to all of humanity, and then to deny the responsibility
to share it with the best amongst youngsters who are located
in diverse groups would be a betrayal of humanity. F
142. Knowledge is also power. It empowers the individual.
It also empowers the group to which that individual belongs to,
and has culturally been induced to show greater affinity for.
Consequently, the propagation of knowledge only amongst G
certain groups, whether done deliberately, or done on supposed
objective tests of merit that are context and background
insensitive, would lead to massive imbalances in the level of
power to understand, and articulete, amongst social groups. Let
us not deny the truth. We were a horrifically divided society. We H
738 SUPREME COURT REPORTS [2011) 6 $.C.R.
A if humanization is a viable possibility. Within history, in
concrete, objective contexts, both humanization and
dehumanization are possibilities for a person as an
uncompleted being conscious of their incompletion ..... But
while humanization and dehumanization are real
B alternatives, only the first is the people's vocation. This
vocation is constantly negated, yet it is affirmed by that very
negation. It is thwarted by injustice, exploitation,
oppression, and the violence of the oppressors; it is
affirmed by the yearning of the oppressed for freedom and
justice, and by their struggle to recOYer their lost humanity.
c Dehumanization, which marks not only those whose
humanity has been stolen, but also (though in a different
way) those who have stolen it, is a distortion of the vocation
of becoming more fully human ...... This struggle is
possible only because dehumanization, although a
D concrete historical fact, is not a given destiny but the result
of an unjust order that engenders violence in the
oppressors, which in turn dehumanizes the oppressed."
Elsewhere, that great scholar continues:
E
"Because it is a distortion of being more fully human,
sooner or later being less human leads the oppressed to
struggle against those who made them so. In order for this
struggle to have meaning, the oppressed must not, in
seeking to regain their humanity (which is a way to create
F
it) become in turn oppressors of the oppressors, but rather
restorers of the humanity of both.
"This, then, is the great humanistic and historical task of
the oppressed: to liberate themselves and their
G oppressors as well. The oppressors, who oppress, exploit,
and rape by virtue of their power, cannot find in this power
the strength to liberate either the oppressed or themselves.
Only power that springs from the weakness of the
oppressed will sufficiently be strong to free both. Any
H
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 739
& ORS. [B.SUDERSHAN REDDY, J.]
attempt to "soften" the power of the oppressor in deference A
to the weakness of the oppressed almost always
manifests itself in the form of false generosity; indeed, the
attempt never goes beyond this. In order to have continued
opportunity to express their "generosity," the oppressor
must perpetuate injustice as well. An unjust social order B
must perpetuate injustice as well. An unjust social order
is the permanent fount of this "generosity," which is
nourished by death, despair and poverty. That is why
dispensers of false generosity become desperate at the
slightest threat to its source ..... True generosity consists c
precisely in fighting to destroy the causes which nourish
false charity."
144. Our non-minority unaided educational institutions,
including professional educational institutions, in claiming to be
engaging in a charitable occupation, and yet claiming the right D
to ignore the conditions of social injustice and inequality that
have a bearing on academic accomplishments of students at
a young age, which are the indicia of oppression, would
necessarily perpetuate the conditions of lack of access to
knowledge that can transform the praxis of socially and E
educationally disadvantaged groups. The occupation they
would be engaging in would be imbued with.'"false charity." For
the past two decades, this country has been in the throes of
early "amor" with the false but mesmerizing promises of laissez
faire free markets, liberalization, privatization and globalization. F
The State, in the throes of that false passion, believed that it
would lead to generation of such wealth, that it could then take
on the task of providing access to higher education to hitherto
·excluded classes and groups. However, that promise has
turned out to be false and a mirage. It is now apparent to the G
State that denial of access to higher education, to socially and
educationally backward classes, and Scheduled Castes and
Scheduled Tribes, would potentially be dangerous to the ship
of our nation, the Constitution. The 93rd Amendment, by
. necessitating a wider analysis of different facets of our H
740 SUPREME COURT REPORTS [2011] 6 S.C.R.
A constitutional constructs, and the ontology that it is based on,
has revealed new dimensions of understanding our past,
present, and how we might approach the future. The verities of
historical human experience, that passing ideological passions
had buried, stand forth now, in their glorious hue of a true path
B to a humanized destiny. It is imperative, that our institutions of
higher learning, which are a part of our national life, be freed
from this false charity that can only lead to a dehumanized
social order.
145. Our Constitution is based on an ontology of
C humanism. It is based on the recognition of the dehumanization
of vast swaths of our people in a hierarchical society. It is based
on the acknowledgment of the truth that as long as endemic
inequalities remain entrenched, the cultural constructs of the
inherited notions of hierarchy and of social worth based on
D social status would not disappear, and further intensify the
conditions of dehumanized existence of all human beings,
irrespective of their stature. The disadvantaged are obviously
brutalized and dehumanized, by the very structure in which they
are compelled to live in. If the mas >es of India were to start
E believing, which thankfully they do not, and hopefully will not in
the future, that their dehumanized condition is immutable, then
also the ship of our constitution would have lost its way. If they
conclude, that dehumanization is the only normal order based
on what some keep propagating, and then further conclude that
F the only way out for them would be to violently revolt and
oppress the oppressor, the ship would sink.
146. Education is one of the principal human activities to
establish a humanized order in our country. Its ontological
G specification is simple: every individual, in every group, is
worthy of being educated. In as much as certain resources, such
as seats in institutions of higher education, including
professional education, are scarce, then they have to be
allocated. The allocation can only be based on the fundamental
H ontological assumption that those who excel, within equal social
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 741
& ORS. [B.SUDERSHAN REDDY, J.]
circumstances, should be rewarded with access to higher A
education. Any other formula of distribution of such access,
would be fundamentally inhl!man, and violate Article 14 of our
Constitution. Given our past history of caste and gender based
discrimination, and the continuation of endemic inequalities, in
social, economic and cultural spheres, including education at B
all levels, giving freedom to an educator to choose who he or
she would want to teach, and teach only those who belong to
socially and educationally advanced groups, would be a curse
on our constitutional project. The fact that non-minority unaided
educational institutions insist on "social disadvantages blind" c
admission policies is proof that they are not recognizing the
true purpose of education as an occupation. Hence, State
intervention is a categorical imperative, both morally and within
our constitutional logic.
147. In light of the above, we hold that the claimed rights D
of non-minority educational institutions to admit students of their
choice, would not only be a minor right, but if that were in fact
a right, if exercised in full measure, that would be detrimental
to the true nature of education as an occupation, damage the
environment in which our students are taught the lessons of life, E
and imparted knowledge, and further also damage their ability
to learn to deal with the diversity of India, and gain access to
knowledge of its problems, so that they can appreciate how they
can apply their formal knowledge in concrete social realities
they will confront. F
148. Consequently, given the absolute necessity of
achieving the egalitarian and social justice goals that are
implied by provisions ofclause (5) of Article 15, and the urgency
of such a requirement, we hold that they are not a violation of G
the basic structure, but in fact strengtheh the basic structure of
our constitution. Consequently, we also find that the provisions
of Delhi Act 80 of 2007, with respect to various categories of
reservations provided therein to be constitutionally valid.
H
742 SUPREME COURT REPORTS [2011] 6 S.C.R.
A VIII
CONCLUSIONS:
(A) The Delhi Professional Colleges or Institutions
(Prohibition of Capitation Fee, Regulation of Admission,
B Fixation of Non-Exploitative Fee And Other Measures to
Ensure Equity And Excellence) Act, 2007 (Delhi Act 80 of
2007) or any provisions thereof do not suffer from any
constitutional infirmities. The validity of the Delhi Act 80 of
2007, and its provisions, are accordingly upheld.
c
(B) The Notification dated 14-08-2008 issued by the
Government of National Capital Territory of Delhi permitting
"the Army College of Medical Sciences, Delhi Cantonment,
Delhi to allocate hundred percent seats in the said college
D for admission towards of Army personnel in accordance
with the policy followed by the Indian Army" is ultra vires
the provisions of Delhi Act 80 of 2007 and also 1
unconstitutional. The same is accordingly set aside.
(C) The admission procedures '.levised by Army College
E of Medical Sciences, Delhi Cantonment, Delhi for admitting
the students in the first year MBBS course from a pre-
defined source, carved out by itself and its parent society,
are illegal and ultra vires the provisions of the Delhi Act
80 of 2007.
F
(D) Clause (5) of Article 15 does not violate the basic
structure of the Constitution.
RELIEF
G For the aforesaid reasons the impugned judgment of the
Delhi High Court is set aside. Consequently, the respondents
are directed to admit the Writ Petitioners into the First Year of
MBBS Course in Army College of Medical Sciences, if the Writ
Petitioners still so desire, for they have been deprived of their
H legitimate right of admission to the course, for no fault of theirs,
INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA 743
& ORS. [B.SUDERSHAN REDDY, J.]
notwithstanding the rank secured by them in the CET. It is true A
that they have appeared at the common entrance examination
held long ago and qualified themselves to get admitted but were
deprived of the same on account of the illegal admission policy
of Army College of Medical Sciences permitted by the
Government of Delhi. In the circumstances, all the respondents B
are accordingly directed to ensure that the Writ Petitioners are
admitted into the First Year MBBS Course in the ensuing
academic year by creating supernumerary seats. However, we
make it clear that the admissions already made by Army
College of Medical Sciences are saved and shall not be c
affected in any manner whatsoever.
The appeals and the writ petitions are accordingly ordered.
R.P. Matters disposed of.
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