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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

T.C.(C) NO.98 OF 2012

CHRISTIAN MEDICAL COLLEGE  VELLORE & ORS       ...Petitioners

                VERSUS

UNION OF INDIA AND ORS.  ...Respondents

WITH T.C.(C) NO.99/2012 T.C.(C) NO.101/2012 T.C.(C) NO.100/2012 T.C.(C) NO.102/2012 T.C.(C) NO.103/2012 W.P.(C) NO.480/2012 T.C.(C) NO.104/2012 T.C.(C) NO.105/2012 W.P.(C) NO.468/2012 W.P.(C) NO.467/2012 W.P.(C) NO.478/2012 T.C.(C) NO.107/2012 T.C.(C) NO.108/2012 W.P.(C) NO.481/2012 W.P.(C) NO.464/2012 T.C.(C) NO.110/2012 T.C.(C) NOS.132-134/2012 T.C.(C) NOS.117-118/2012 T.C.(C) NOS.115-116/2012 T.C.(C) NOS.125-127/2012 T.C.(C) NOS.113-114/2012

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T.C.(C) NOS.128-130/2012 T.C.(C) NOS.121-122/2012 T.C.(C) NO.112/2012 T.C.(C) NO.131/2012 T.C.(C) NOS.123-124/2012 T.C.(C) NO.111/2012 T.C.(C) NO.120/2012 T.C.(C) NO.119/2012 T.C.(C) NOS.135-137/2012 T.C.(C) NOS.138-139/2012 W.P.(C) NO.495/2012 W.P.(C) NO.511/2012 W.P.(C) NO.512/2012 W.P.(C) NO.514/2012 W.P.(C) NO.516/2012 W.P.(C) NO.519/2012 W.P.(C) NO.535/2012 T.C.(C) NO.142/2012 @ T.P.(C) NO.364/2012 W.P.(C) NO.544/2012 W.P.(C) NO.546/2012 W.P.(C) NO.547/2012 T.C.(C) NO.144/2012 @ T.P.(C) NO.1524/2012 & 1447/2012 T.C.(C) NO.145/2012 T.C.(C) NO.1/2013 @ T.P.(C) NO.1527/2012 T.C.(C) NOS.14-15/2013 @ T.P.(C) NOS.1672-1673/2012 T.C.(C) NO.76/2013 @ T.P.(C) NO.1702/2012 T.C.(C) NO.12-13/2013 T.C.(C) NO.4/2013 T.C.(C) NO.11/2013 T.C.(C) NOS.21-22/2013 @ T.P.(C) NO.1714-1715/2012 T.C.(C) NO.5/2013 @ T.P.(C) NO.1718/2012 W.P.(C) NO.2/2013 W.P.(C) NO.1/2013 T.C.(C) NO.60/2013 @ T.P.(C) NO.12/2013 W.P.(C) NO.13/2013 W.P.(C) NO.15/2013 W.P.(C) NO.16/2013 W.P.(C) NO.20/2013

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T.C.(C) NO....../2013 @ T.P.(C) NO.31/2013 T.C.(C) NO.2/2013 @ T.P.(C) NO.1532/2012 T.C.(C) NO.8/2013 T.C.(C) NO.3/2013 @ T.P.(C) NO.1533/2012 W.P.(C) NO.24/2013 T.C.(C) NO.9/2013 T.C.(C) NO.17/2013 @ T.P.(C) NO.1588/2012 W.P.(C) NO.483/2012 W.P.(C) NO.501/2012 W.P.(C) NO.502/2012 W.P.(C) NO.504/2012 W.P.(C) NO.507/2012 T.C.(C) NO.10/2013 T.C.(C) NO.7/2013 @ T.P.(C) NO.1644/2012 T.C.(C) NO.18/2013 @ T.P.(C) NO.1645/2012 T.C.(C) NO.75/2013 @ T.P.(C) NO.1647/2012 T.C.(C) NO.19/2013 @ T.P.(C) NO.1653/2012 T.C.(C) NO.20/2013 @ T.P.(C) NO.1654/2012 T.C.(C) NO.59/2013 @ T.P.(C) NO.1656/2012 T.C.(C) NO.53/2013 @ T.P.(C) NO.1658/2012 T.C.(C) NO.25/2013 @ T.P.(C) NO.1671/2012 T.C.(C) NO.23-24/2013 @ T.P.(C) NO.1697-1698/2012 T.C.(C) NO.58/2013 @ T.P.(C) NO.1/2013 W.P.(C) NO.27/2013 T.C.(C) NO.72/2013 @ T.P.(C) NO.58/2013 T.C.(C) NO.16/2013 T.C.(C) NO.61/2013 T.C.(C) NO.73/2013 @ T.P.(C) NO.75/2013 T.C.(C) NO....../2013 @ T.P.(C) NO.79/2013 T.C.(C) NO.62/2013 W.P.(C) NO.47/2013 T.C.(C) NO.28-29/2013 T.C.(C) NO.30/2013 T.C.(C) NO.31-32/2013 T.C.(C) NO.33-36/2013 T.C.(C) NO.37-38/2013 T.C.(C) NO.39/2013 T.C.(C) NO.40/2013

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T.C.(C) NO.41/2013 T.C.(C) NO.42/2013 T.C.(C) NO.43/2013 T.C.(C) NO.44/2013 T.C.(C) NO.45/2013 T.C.(C) NO.46/2013 T.C.(C) NO.47/2013 T.C.(C) NO.48/2013 T.C.(C) NO.49/2013 W.P.(C) NO.66/2013 W.P.(C) NO.76/2013 W.P.(C) NO.74/2013 T.C.(C) NOS.63-65/2013 T.C.(C) NOS.66-69/2013 T.C.(C) NOS.70-71/2013 W.P.(C) NO.41/2013 W.P.(C) NO.228/2013

J U D G M E N T

ALTAMAS KABIR, CJI.

1. Four notifications, two dated 21.12.2010 and the  

other two dated 31.5.2012, issued by the Medical Council  

of India and the Dental Council of India, are the subject  

matter of challenge in all these matters which have been  

heard together by us.  Notification No. MCI-31(1)/2010-

MED/49068 described as "Regulations  on Graduate Medical

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Education (Amendment) 2010, (Part II)" has been published  

by the Medical Council of India to amend the "Regulations  

on  Graduate  Medical  Education,  1997".   Notification  

No.MCI.18(1)/2010-MED/49070  described  as  "Post-graduate  

Medical Education (Amendment) Regulation, 2010 (Part II)"  

has been issued by the said Council to amend the "Post  

Graduate Medical Education Regulations, 2000".  Both the  

Regulations  came  into  force  simultaneously  on  their  

publication  in  the  Official  Gazette.   The  third  and  

fourth Notifications both bearing No. DE-22-2012 dated  

31.5.2012,  relating  to  admission  in  the  BDS  and  MDS  

courses published by the Dental Council of India, are  

similar to the notifications published by the MCI.   

2. The  four  aforesaid  Notifications  have  been  

challenged  on  several  grounds.   The  major  areas  of  

challenge to the aforesaid Notifications are:

(i) The powers of the Medical Council of India and the  

Dental Council of India to regulate the process of  

admissions  into  medical  colleges  and  institutions

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run by the State Governments, private individuals  

(aided and unaided), educational institutions run by  

religious and linguistic minorities, in the guise of  

laying down minimum standards of medical education,  

as  provided  for  in  Section  19A  of  the   Indian  

Medical Council Act, 1956, and under Entry 66 of  

List I of the Seventh Schedule to the Constitution.

(ii) Whether  the  introduction  of  one  National  

Eligibility-cum-Entrance  Test  (NEET)  offends  the  

fundamental right guaranteed to any citizen under  

Article 19(1)(g) of the Constitution to practise any  

profession or to carry on any occupation, trade or  

business?

(iii)Whether NEET violates the rights of religious and  

linguistic  minorities  to  establish  and  administer  

educational  institutions  of  their  choice,  as  

guaranteed under Article 30 of the Constitution?

(iv) Whether subordinate legislation, such as the right

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to  frame Regulations,  flowing from  a power  given  

under a statute, can have an overriding effect over  

the fundamental rights guaranteed under Articles 25,  

26, 29(1) and 30 of the Constitution?

(v) Whether the exclusion of Entry 11 from the State  

List  and  the  introduction  of  Entry  25  in  the  

Concurrent  List  by  the  Constitution  Forty  Second  

(Amendment) Act, 1976, makes any difference as far  

as the Regulations framed by the Medical Council of  

India under Section 33 of the 1956 Act and those  

framed by the Dental Council of India under Section  

20 of the Dentists Act, 1948, are concerned, and  

whether  such  Regulations  would  have  primacy  over  

State legislation on the same subject?

(vi) Whether the aforesaid questions have been adequately  

answered  in  T.M.A.  Pai  Foundation Vs.  State  of  

Karnataka [(2002) 8 SCC 481], and in the subsequent  

decisions in Islamic Academy of Education Vs. State  

of Karnataka [(2003) 6 SCC 697],  P.A. Inamdar Vs.

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State of Maharashtra [(2005) 6 SCC 537] and Indian  

Medical Association Vs. Union of India [(2011) 7 SCC  

179]? and  

(vii)Whether  the  views  expressed  by  the  Constitution  

Bench  comprised  of  Five  Judges  in  Dr.  Preeti  

Srivastava Vs. State of M.P. [(1999) 7 SCC 120] have  

any impact on the issues raised in this batch of  

matters?   

3. In order to appreciate the challenge thrown to the  

four  notifications,  it  is  necessary  to  understand  the  

functions  and  duties  of  the  Medical  Council  of  India  

under  the  Indian  Medical  Council  Act,  1956,  and  the  

Dental Council of India  constituted under the Dentists  

Act, 1948.  The submissions advanced in regard to the  

MBBS and Post-graduate courses will apply to the BDS and  

MDS courses also.  

4. The Indian Medical Council Act, 1933, was replaced  

by  the  Indian  Medical  Council  Act,  1956,  hereinafter

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referred  to  as  "the  1956  Act",  inter  alia,  with  the  

following objects in mind :-

"(a) to  give  representation  to  licentiate  members  of  the  medical  profession, a large number of whom are  still practicing in the country;

(b) to  provide  for  the  registration  of  the names of citizens of India who have  obtained foreign medical  qualifications which are not at present  recognized under the existing Act; (c) to  provide  for  the  temporary  recognition of medical  qualifi-cations  granted  by  medical  institutions  in  countries  outside  India  with  which  no  scheme  of  reciprocity  exists  in  cases  where the medical practitioners concerned  are attached for the time being to  any medical institution  in  India  for  the purpose of teaching  or  research  or  for any charitable objects;

(d) to  provide  for  the  formation  of  a  Committee of Post-graduate  Medical  Education  for  the  purpose  of  assisting  the Medical Council of India to prescribe  standards  of  post-graduate  medical  education  for  the  guidance  of  universities and to  advise  universities  in  the  matter  of  securing  uniform  standards  for  post-graduate  medical education throughout India; (e) To provide for the maintenance of an

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all-India register  by  the  Medical  Council of India, which will contain the  names of all the medical practitioners  possessing  recognized  medical  qualifications."

5. The Medical Council of India, hereinafter referred  

to as "MCI", has been defined in Section 2(b) of the 1956  

Act  to  mean  the  Medical  Council  of  India  constituted  

under the said Act.   The Council was constituted under  

Section  3  of  the  Indian  Medical  Council  Act,  1956.  

Section  6  of  the  aforesaid  Act  provides  for  the  

incorporation of the Council as a body corporate by the  

name  of  Medical  Council  of  India,  having  perpetual  

succession and a common seal, with power to acquire and  

hold  property,  both  movable  and  immovable,  and  to  

contract, and to sue and be sued by the said name.

6. The  powers  vested  in  the  MCI  are  essentially  

recommendatory  in  nature.  Section  10A,  which  was  

introduced in the 1956 Act by Amending Act 31 of 1993,  

with effect from 27th August, 1992, inter alia,  provides  

that notwithstanding anything contained in the Act or any

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other law for the time being in force:-  

(a) no person shall establish a medical college; or  

(b) no medical college shall :-  (i) open a new or higher course of study or  

training (including a postgraduate course of   

study or training) which would enable a student  

of such course or training to qualify himself  

for  the  award  of  any  recognised  medical   

qualification; or

(ii)   increase its admission capacity in any  

course  of  study  or  training  (including  a   

postgraduate course of study or training),  

except  with  the  previous  permission  of  the  Central  

Government obtained in accordance with the provisions of  

this section.   

Under Section 10A the function of the MCI is purely  

recommendatory for the purpose of grant of permission by

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the Central Government to establish a new medical college  

or to introduce a new course of study.   

7. Section 19A which was introduced into the 1956 Act  

by  Act  24  of  1964  with  effect  from  16th  June,  1964,  

provides for the Council to prescribe "minimum standards  

of medical education".  Since Section 19A will have some  

bearing on the judgment itself, the same is extracted  

hereinbelow in full :-

"19A.  Minimum  standards  of  medical  education - (1) The Council may prescribe  the  minimum  standards  of  medical  education  required  for  granting  recognised medical qualifications (other  than postgraduate medical qualifications)  by  universities  or  medical  institutions  in India.

(ii) Copies of the draft regulations and  of  all  subsequent  amendments  thereof  shall be furnished by the Council to all  State Governments and the Council shall  before submitting the regulations or any  amendment thereof, as the case may be, to  the Central Government for sanction, take  into  consideration  the  comments  of  any  State  Government  received  within  three  months from the furnishing of the copies  as aforesaid. (3)   The  Committee  shall  from  time  to

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time  report  to  the  Council  on  the  efficacy  of  the  regulations  and  may  recommend to the Council such amendments  thereof as it may think fit."

8. Section 20 of the 1956 Act, provides for a Post-

graduate  Medical  Education  Committee  to  assist   the  

Medical Council of India to prescribe standards of post-

graduate  medical  education  for  the  guidance  of  the  

Universities.  For the sake of reference, the relevant  

portions of Section 20 of the 1956 Act with which we are  

concerned, are also extracted hereinbelow :-

"20.  Post-graduate  Medical  Education  Committee  for  assisting  Council  in  matters relating to post-graduate medical  education - (1) The Council may prescribe  standards  of  Postgraduate  Medical  Education  for  the  guidance  of  Universities, and may advise Universities  in  the  matter  of  securing  uniform  standards  for  Postgraduate  Medical  Education through out India, and for this  purpose the Central Govt. may constitute  from among the members of the Council a  Postgraduate Medical Education Committee  (hereinafter  referred  to  as  the  Post- graduate Committee).

9. By the first of the two Notifications dated 21st

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December,  2010,  being  MCI-31(1)/2010-Med./49068,  the  

Medical Council of India, in purported exercise of the  

powers  conferred  by  Section  33  of  the  1956  Act,  made  

various amendments to the 1997 Regulations on Graduate  

Medical Education.  The most significant amendment, which  

is also the subject matter of challenge in some of these  

writ  petitions  and  transferred  cases,  is  clause  5  in  

Chapter II of the Regulations.  The relevant paragraph in  

the Amendment Notification reads as follows:

"6. In  Chapter  II,  Clause  5  under  the  heading "Procedure for selection to MBBS  Course  shall  be  as  follows"  shall  be  substituted as under:-

I. There shall be a single eligibility  cum entrance examination namely 'National  Eligibility-cum-Entrance  Test  for  admission  to  MBBS  course'  in  each  academic  year.   The  overall  superintendence, direction and control of  National  Eligibility-cum-Entrance  Test  shall vest with Medical Council of India.  However,  Medical  Council  of  India  with  the  previous  approval  of  the  Central  Government shall select organization/s to  conduct  'National  Eligibility-cum- Entrance  Test  for  admission  to  MBBS  course.

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II. In order to be eligible for admission  to MBBS course for a particular academic  year,  it  shall  be  necessary  for  a  candidate to obtain minimum of 50% (Fifty  Percent) marks in each paper of National  Eligibility-cum-Entrance  Test  held  for  the  said  academic  year.   However,  in  respect  of  candidates  belonging  to  Scheduled  Casts,  Scheduled  Tribes  and  Other  Backward  Classes,  the  minimum  percentage shall be 40% (Forty Percent)  in  each  paper  and  in  respect  of  candidates with locomotory disability of  lower limbs, the minimum percentage marks  shall be 45% (Forty Five Percent) in each  paper  of  National  Eligibility-cum- Entrance Test: Provided  when  sufficient  number  of  candidates  belonging  to  respective  categories fail to secure minimum marks  as  prescribed  in  National  Eligibility- cum-Entrance Test in any academic year  for  admission  to  MBBS  Course,  the  Central Government in consultation with  Medical  Council  of  India  may  at  its  discretion  lower  the  minimum  marks  required  for  admission  to  MBBS  Course  for  candidates  belonging  to  respective  categories and marks so lowered by the  Central  Government  shall  be  applicable  for the said year only.

III. The  reservation  of  seats  in  medical  colleges  for  respective  categories  shall  be  as  per  applicable  laws  prevailing  in  States/  Union  Territories.  An all India merit list as  well  as  State-wise  merit  list  of  the

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eligible candidates shall be prepared on  the  basis  of  the  marks  obtained  in  National  Eligibility-cum-Entrance  Test  and candidates shall be admitted to MBBS  course from the said lists only. IV. No candidate who has failed to obtain  the  minimum  eligibility  marks  as  prescribed in Sub Clause(ii) above shall  be admitted to MBBS Course in the said  academic year.

V. All admissions to MBBS course within  the respective categories shall be based  solely on marks obtained in the National  Eligibility-cum-Entrance Test.

(Dr. P. Prasannaraj) Additional Secretary

Medical Council of India"  10. Similarly,  by  virtue  of  Notification  No.  

MCI.18(1)/2010-Med./49070, in purported exercise of the  

powers  conferred  by  Section  33  of  the  1956  Act,  the  

Medical Council of India, with the previous approval of  

the Central Government, made similar amendments to the  

Postgraduate  Medical  Education   Regulations,  2000,  

providing  for  a  single  eligibility  cum  entrance  

examination.  For the sake of reference, the portion of  

the notification which is relevant for our purpose is

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extracted hereinbelow:

"No.  MCI.18(1)/2010-Med./49070.  –  In  exercise  of  the  powers  conferred  by  Section 33 of the Indian Medical Council  Act,  1956(102  of  1956),  the  Medical  Council  of  India  with  the  previous  approval  of  the  Central  Government  hereby  makes  the  following  regulations  to  further  amend  the  “Postgraduate  Medical  Education  Regulations,  2000”,  namely:-  

1. (i) These Regulations may be called  the  Postgraduate  Medical  Education  (Amendment)  Regulations,  2010  (Part- II)”.  

(ii) They shall come into force from the  date  of  their  publication  in  the  Official Gazette.  

2.  In  the  “Postgraduate  Medical  Education  Regulations,  2000”,  the  following  additions  /modifications  /  deletions / substitutions, shall be as  indicated therein:-  

3. Clause 9 under the heading ‘SELECTION  OF  POSTGRADUATE  STUDENTS’  shall  be  substituted as under:-   “9. Procedure for selection of candidate  for  Postgraduate  courses  shall  be  as  follows:  

I. There shall be a single eligibility  cum  entrance  examination  namely

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‘National  Eligibility-cum-Entrance  Test  for  admission  to  Postgraduate  Medical  Courses’  in  each  academic  year.  The  overall  superintendence,  direction  and  control  of  National  Eligibility-cum- Entrance  Test  shall  vest  with  Medical  Council  of  India.   However,  Medical  Council  of  India  with  the  previous  approval of the Central Government shall  select  organization/s  to  conduct  ‘National  Eligibility-cum-Entrance  Test  for admission to Postgraduate courses’."

Two  similar  Notifications  both  bearing  No.DE-22-

2012  dated  31.5.2012,  were  published  by  the  Dental  

Council of India for the same purpose.

11. The challenge to these Notifications has thrown up  

various issues, which include the powers of the Central  

and  the  State  Governments  to  legislate  on  matters  

relating to education under Entry 66 of List I of the  

Seventh Schedule to the Constitution and Entry 25 of List  

III  which  was  introduced  by  way  of  the  Constitution  

(Forty-second  Amendment)  Act,  1976,  having  particular  

regard to the fact that the previous Entry No. 11 in the  

State List, was omitted by the said amendment, doing away

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with education as a State subject and denuding the State  

of  its  powers  to  legislate  on  matters  relating  to  

education  except  in  accordance  with  Entry  25  of  the  

Concurrent List.  In fact, what has been pointed out on  

behalf of some of the parties is that by omitting Entry  

11 from the State List and including Entry 25 in the  

Concurrent  List  of  the  Seventh  Schedule,  the  Union  

Government acquired the authority to also legislate on  

matters  relating  to  education,  which  it  did  not  have  

previously.  

12. Another  common  submission,  which  is  of  great  

significance as far as these matters are concerned, was  

with regard to the adverse impact of the single entrance  

examination on the  fundamental right guaranteed to all  

citizens under Article 19(1)(g) of the Constitution to  

practise any profession, or to carry on any occupation,  

trade  or  business.   The  provisions  of  Article  30,  

preserving  the  right  of  both  religious  and  linguistic  

minorities,  to  establish  and  administer  educational

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institutions of their choice, were also highlighted by  

learned counsel for some of the Petitioners.   

13. The major challenge, however, was with regard to  

the MCI's attempt to regulate admissions to the M.B.B.S.  

and  Post-graduate  Courses  in  all  medical  colleges  and  

medical institutions in the country run by the different  

State Governments and by private agencies falling within  

the ambit of Article 19(1)(g) and in some cases Article  

30 of the Constitution as well by introducing NEET. One  

of the facets of such challenge was the inter-play of  

Article 29(2) and Article 30(1), as also Article 30(2) of  

the Constitution.  Various authorities have been cited on  

behalf  of  the  different  parties,  harking  back  to  the  

Presidential Reference in the Kerala Education Bill case  

[(1959] S.C.R. 995], and the subsequent views, which have  

been expressed on most of the aforesaid issues by various  

combinations  of  Judges,  which  include  combinations  of  

Eleven-Judges, Nine-Judges, Seven-Judges, Five-Judges and  

Three-Judges, of this Court.  While most of the decisions

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touch upon the main theme in these matters regarding the  

right  of  either  the  Central  Government  or  the  State  

Government or the MCI to regulate admissions into medical  

colleges,  the  issue  raised  before  us  concerning  the  

authority of the MCI and the DCI to conduct an All India  

Entrance  Examination,  which  will  form  the  basis  of  

admissions  into  the  M.B.B.S.  as  well  as  Post-graduate  

Courses in all medical colleges and institutions all over  

the  country,  could  not  be  considered  in  the  earlier  

judgments.  As a result, after the introduction of NEET,  

admissions to the M.B.B.S. and Post-graduate courses and  

the BDS and MDS courses can be made only on the basis of  

the Select List prepared in accordance with the results  

of  the  All  India  Entrance  Test,  which  would  not  only  

eliminate a large number of applicants from admission to  

the medical colleges, but would also destroy the very  

essence  of  Articles  25,  26,  29(1)  and  30  of  the  

Constitution,  since  admission  is  one  of  the  more  

important functions of an institution.   

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14. The submissions in these cases were commenced by  

Mr. Harish Salve, learned senior counsel appearing for  

the Christian Medical College, Vellore, and the Christian  

Medical College, Ludhiana, the Petitioners in Transferred  

Cases (C) Nos. 98-99 of 2012.  Mr. Salve's submissions  

were supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan,  

Mr.  K.K.  Venugopal  and  Mr.  R.  Venkataramani,  learned  

senior counsel, and several others appearing for some of  

the religious and linguistic minorities referred to in  

Article 30 of the Constitution.

15. Mr. Salve submitted that the two Notifications both  

dated 21st December, 2010, incorporating amendments in  

the Regulations on Graduate Medical Education, 1997 and  

the  Post-Graduate  Medical  Education  Regulations,  2000,  

and  introducing  a  single  National  Eligibility-cum-

Entrance Test (NEET) for admission to the MBBS course and  

the Post-graduate course in each academic year throughout  

the  country,  had  been  challenged  by  the  Petitioners  

before the Madras High Court, in Writ Petition Nos.24109

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of 2011 and 24110 of 2011.  Mr. Salve urged that the said  

amendments stifled and stultified the fundamental rights  

guaranteed to religious minorities under Articles 25, 26,  

29(1) and 30 of the Constitution of India.  Mr. Salve  

submitted  that  Article  25  secures  to  every  person,  

subject to public order, health and morality and to the  

other provisions of Part-III of the Constitution, freedom  

of conscience and the right freely to profess, practise  

and propagate religion.  The said right guarantees to  

every person freedom not only to entertain such religious  

belief, but also to exhibit his belief in such outward  

acts as he thought proper and to propagate or disseminate  

his ideas for the edification of others.  Mr. Salve urged  

that this proposition was settled by this Court as far  

back as in 1954 by a Bench of Seven-Judges in  Commr.,  

H.R.E. Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur  

Mutt [1954 SCR 1005].

16. Mr. Salve submitted that subject to public order,  

morality  and  health,  Article  26  of  the  Constitution

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guarantees to every religious denomination or a section  

thereof, the right to establish and maintain institutions  

for religious and charitable purposes and to manage its  

own affairs in matters of religion.  Mr. Salve urged that  

in regard to affairs in matters of religion, the right of  

management given to a religious body  is a guaranteed  

fundamental  right  which  no  legislation  can  take  away.  

Mr.  Salve  submitted  that  Article  30(1)  of  the  

Constitution  gives  religious  and  linguistic  minorities  

the  right  to  establish  and  to  administer  educational  

institutions of their choice, which was reiterated and  

emphasised  in  T.M.A.  Pai  Foundation Vs.  State  of  

Karnataka [(2002)  8  SCC  481],  decided  by  a  Bench  of  

Eleven Judges.    

17. Mr.  Salve  submitted  that  the  Christian  Medical  

College,  Vellore,  hereinafter  referred  to  as  "CMC  

Vellore",  was  established  113  years  ago  as  a  one-bed  

clinic by one Dr. Ida Sophia Scudder, the daughter of an  

American  Medical  Missionary.  She  started  training

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Compounders  (Health  Assistants)  in  1903  and  Nurses  in  

1909,  and  was  able  to  establish  a  Missionary  Medical  

School for women leading to the Licentiate in Medical  

Practice in 1918 which was upgraded to the MBBS course  

affiliated  to  the  Madras  University.   Admission  was  

thrown open to men for the MBBS course in 1947.  As the  

college grew, from 1948 it started admitting students by  

an  All-India  Entrance  Examination,  followed  by  an  in-

depth  interview.  By  1950,  the  affiliation  to  the  

University was confirmed and the intake was increased to  

60 under-graduate MBBS students in 1964, which has now  

increased to 100 MBBS students.  To meet the needs of the  

local  population,  a  large  number  of  Higher  Speciality  

Courses,  Post-graduate  Medical  Courses,  Allied  Health  

Sciences Courses and Courses in Nursing, have also been  

developed over the years.   

18. Currently,  there  are  11  Post-graduate  Medical  

Diploma Courses, 23 Post-graduate Medical Degree Courses  

and 17 Higher Specialty Courses approved by the Medical

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Council of India and affiliated to the Tamil Nadu Dr. MGR  

Medical University.  Today, the CMC Vellore, a minority,  

unaided, non-capitation fee educational institution, is  

run  by  the  Petitioner  Association  comprised  of  53  

Christian Churches and Christian Organizations belonging  

to the Protestant and Orthodox traditions.  The stated  object of the Petitioner Association, as mentioned in its  Memorandum of Association, Constitution and the Bye-laws  is "the establishment, maintenance and development of a  Christian Medical College and Hospitals, in India, where  women  and  men  shall  receive  education  of  the  highest  grade in the art and science of medicine and of nursing,  or in one or other of the related professions, to equip  them in the spirit of Christ for service in the relief of  suffering and the promotion of health".

19. Out of 100 seats available for the under-graduate  

MBBS  Course,  84  are  reserved  for  candidates  from  the  

Christian community and the remaining are available for  

selection  in  the  open  category  with  reservation  for

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candidates  belonging  to  the  Scheduled  Castes  and  

Scheduled Tribes.  Similarly, 50% of the Post-graduate  

seats  are  reserved  for  Christian  candidates  and  the  

remaining 50% are available for open selection on an All-

India  basis.   Mr.  Salve  submitted  that  all  students  

selected for the MBBS course are required to sign a bond  

agreeing to serve for a period of two years in areas of  

need, upon completion of their courses.  Similarly, Post-

graduate  students  selected  in  the  Christian  minority  

category have also to give a similar undertaking.

20. Mr. Salve submitted that the Medical Colleges and  

institutions  run  by  the  Writ  Petitioners  charge  fees  

which are subsidised and are  even lower than the fees  

charged  by   Government  Medical  Colleges.  Liberal  

scholarships are given by the College to those who have  

difficulty  in  making  the  payments,  which  include  

boarding,  lodging  and  University  charges  (which  are  

considerably higher). Learned counsel  submitted that the  

institution  was  established  by  a  Christian  minority

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doctor  in  response  to  her  religious  beliefs  and  the  

command  of  Jesus  Christ  exhorting  His  disciples  and  

followers to heal the sick and has evolved an admission  

process  for  both  its  undergraduate  and  post  graduate  

courses in order to ensure that the selected candidates  

are suitable for being trained according to the ideology  

professed at Vellore.  Mr. Salve urged that the selection  

process  is  comprised  of  an  All  India  Entrance  Test  

followed  by  a  searching  interview  and  special  test  

devised  in  1948.   Such  process  has  been  improved  and  

fine-tuned over the years so that the candidates are not  

only trained as health professionals, but to also serve  

in areas of need in difficult circumstances.

21. It was pointed out that this system of admission  

resorted to by the Petitioner has successfully reflected  

the ideals with which the medical college was founded and  

a survey conducted in 1992 established the fact that the  

majority of graduates and post-graduates, who have passed  

out from the college, have been working in India for more

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than 10 years after their graduation and the majority  

among them were working in non-metropolitan areas of the  

country.  This evaluation remained the same, even during  

surveys conducted in 2002 and 2010, and is in striking  

contrast to similar surveys carried out by other medical  

institutions of equal standard, where only a small number  

of graduates have been working in non-metropolitan areas.

22. Mr. Salve submitted that in 1993, an attempt was  

made by the Government of Tamil Nadu to interfere with  

the  admission  process  in  the  institution  by  a  letter  

dated  7th  May,  1993,  directing  the  Petitioner  to  

implement the scheme framed by this Court in the case of  

Unni  Krishnan Vs.  State  of  U.P. [(1993)  1  SCC  645],  

insofar  as  the  undergraduate  course  in  Nursing  was  

concerned.   The  Petitioner-institution  filed  Writ  

Petition No.482 of 1993 before this Court challenging the  

State  Government's  attempts  to  interfere  with  the  

admission process of the institution as being contrary to  

and in violation of the rights guaranteed to it under

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Article  30  of  the  Constitution.  In  the  pending  Writ  

Petition,  various  interim  orders  were  passed  by  the  

Constitution  Bench  of  this  Court  permitting  the  

institution to take resort to its own admission procedure  

for the undergraduate course in the same manner in which  

it had been doing in the past.  The said Writ Petition  

was heard in 2002, along with the T.M.A. Pai Foundation  

case (supra), wherein eleven questions had been framed.

While  hearing  the  matters,  the  Chief  Justice  

formulated  five  issues  to  encompass  all  the  eleven  

questions,  on  the  basis  of  which  the  hearing  was  

conducted, and the same are extracted below:

"1. Is there a fundamental right to set up  educational  institutions  and,  if  so,  under which provision? 2. Does Unni Krishnan case [(1993) 4 SCC  111] require reconsideration?

3. In  case  of  private  institutions  (unaided  and  aided),  can   there  be  government  regulations  and,  if  so,  to  what extent? 4. In order to determine the existence of

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a  religious  or  linguistic  minority  in  relation to Article 30, what is to be the  unit  -  the  State  or  the  country  as  a  whole? 5. To what extent can the rights of aided  private  minority  institutions  to  administer be regulated?"

Out of the eleven questions framed by the Bench,  

Questions 3(b), 4 and 5(a) are extremely relevant for  

deciding the questions raised in the Writ Petition filed  

by  the  Petitioner-institution.   For  the  sake  of  

reference,  the  said  three  Questions  are  extracted  

hereinbelow:

"Q3(b). To what extent can professional  education be treated as a matter coming  under minorities rights under Article 30? Q4. Whether the admission of students to  minority  educational  institutions,  whether  aided  or  unaided,  can  be  regulated by the State Government or by  the University to which the institution  is affiliated?

Q5(a). Whether the minority's rights to  establish  and  administer  educational  institutions of their choice will include  the procedure and method of admission and  selection of students?"

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23. Mr. Salve submitted that the answer given by the  

Eleven-Judge Bench to the first Question is that Article  

30(1)  re-emphasises  the  right  of   religious  and  

linguistic  minorities  to  establish  and  administer  

educational institutions of their choice.  The use of the  

words "of their choice" indicates that even professional  

educational institutions would be covered by Article 30.

24. The answer to the second Question is that, except  

for providing the qualifications and minimum conditions  

of  eligibility  in  the  interest  of  academic  standards,  

admission  of  students  to  unaided  minority  educational  

institutions  cannot  be  regulated  by  the  State  or  

University concerned.  Mr. Salve pointed out that a note  

of caution was, however, introduced and it was observed  

that  the  right  to  administer,  not  being  an  absolute  

right, there could be regulatory measures for ensuring  

proper  educational  standards  and  maintaining  the  

excellence thereof, particularly in regard to admissions  

to professional institutions.  It was further held that a

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minority institution does not cease to be so, when it  

receives  grant-in-aid  and  it  would,  therefore,  be  

entitled to have a right to admit students belonging to  

the minority group, but at the same time it would be  

required  to  admit  a  reasonable  number  of  non-minority  

students  so  that  rights  under  Article  30(1)  were  not  

substantially impaired and the rights of a citizen under  

Article  29(2)  of  the  Constitution  were  not  infringed.  

However, the concerned State Governments would have to  

notify  the  percentage  of  non-minority  students  to  be  

admitted  in  the  institution.   Amongst  students  to  be  

admitted from the minority group,  inter se merit would  

have to be ensured and, in the case of aided professional  

institutions, it could also be submitted that in regard  

to the seats relating to non-minority students, admission  

should normally be on the basis of the common entrance  

test held by the State agency, followed by counselling  

wherever it exists.

25. In reply to the third Question, it was held that a

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minority  institution  may  have  its  own  procedure  and  

method of admission as well as selection of students, but  

such a procedure would have to be fair and transparent  

and the selection of students in professional and higher  

educational colleges should be on the basis of merit.  

The  procedure  selected  for  admission  by  the  minority  

institution ought not to ignore the merit of students for  

admission while exercising the right to admit students by  

the colleges aforesaid, as in that event, the institution  

will  fail  to  achieve  excellence.   The  said  procedure  

should not amount to maladministration.

26. Some  of  the  issues  decided  in  the  T.M.A.  Pai  

Foundation case came up for clarification in the Islamic  

Academy  of  Education case  (supra) and  for  further  

interpretation in  P.A. Inamdar's case (supra), before a  

Bench of Seven-Judges, wherein the Petitioner-Association  

was duly represented.  The Hon'ble Judges reiterated the  

views expressed in the  T.M.A. Pai Foundation case that  

there  cannot  be  any  reservation  in  private  unaided

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institutions,  which  had  the  right  to  have  their  own  

admission  process,  if  the  same  was  fair,  transparent,  

non-exploitative and based on merit.  Mr. Salve referred  

to paragraph 125 of the judgment in P.A. Inamdar's case  

(supra), which is relevant for our purpose, and reads as  

follows:

"125. As per our understanding, neither  in the judgment of Pai Foundation [(2002)  8 SCC 481] nor in the Constitution Bench  decision in Kerala Education Bill [1959  SCR  995]  which  was  approved  by  Pai  Foundation, is there anything which would  allow the State to regulate or control  admissions  in  the  unaided  professional  educational institutions so as to compel  them to give up a share of the available  seats  to  the  candidates  chosen  by  the  State,  as  if  it  was  filling  the  seats  available  to  be  filled  up  at  its  discretion in such private institutions.  This would amount to nationalisation of  seats  which  has  been  specifically  disapproved in Pai Foundation [(2002) 8  SCC  481].  Such  imposition  of  quota  of  State  seats  or  enforcing  reservation  policy of the State on available seats in  unaided  professional  institutions  are  acts constituting serious encroachment on  the  right  and  autonomy  of  private  professional  educational  institutions.  Such appropriation of seats can also not

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be held to be a regulatory measure in the  interest  of  the  minority  within  the  meaning of Article 30(1) or a reasonable  restriction within the meaning of Article  19(6)  of  the  Constitution  of  India.  Merely because the resources of the State  in  providing  professional  education  are  limited,  private  educational  institutions,  which  intend  to  provide  better professional education, cannot be  forced by the State to make admissions  available  on  the  basis  of  reservation  policy  to  less  meritorious  candidates.  Unaided  institutions,  as  they  are  not  deriving any aid from State funds, can  have  their  own  admissions  if  fair,  transparent,  non-exploitative  and  based  on merit."

27. Mr. Salve submitted that after this decision, the  

Petitioner Institution continued to admit students to its  

various graduate and post-graduate courses by following  

its own admission procedure, as it had been doing for the  

last  several  decades.   Mr.  Salve  submitted  that  the  

Committee  set  up  by  the  Government  of  Tamil  Nadu  has  

permitted  the  Institution  to  follow  its  own  admission  

procedure  for  undergraduate  M.B.B.S.  course  for  the  

academic year 2012-2013.

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28. While matters were thus poised, the Medical Council  

of India framed the impugned amended Regulations, which,  

according to Mr. Salve, not only violated the fundamental  

rights guaranteed under Articles 25, 26 and 30 of the  

Constitution  to  minority  run  institutions,  but  if  

implemented, would destroy the very objective with which  

the  hospital  had  been  set  up  in  response  to  Christ's  

mission of healing the sick.  Mr. Salve submitted that  

the impugned Notifications were inconsistent with the law  

laid down by the Supreme Court in its various decisions  

dealing with the rights of unaided, non-capitation fee  

minority institutions to admit students of their choice.  

29. Mr. Salve submitted that right from the decision in  

Unni Krishnan's case (supra), when the State Government  

first  sought  to  interfere  with  the  admission  process  

adopted by the Petitioner Institution, this Court has, by  

virtue of different interim and final orders, held that  

there could be no reservation of seats in institutions  

like the ones run by the Petitioner, which are wholly

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unaided and have always been permitted to admit students  

of their choice, in keeping with their status as minority  

unaided  professional  institutions.   It  was  urged  that  

Clause  9(vi)  of  the  Post-Graduate  Notification,  which  

provides for reservation, is  ultra vires the provisions  

of Article 30(1) of the Constitution.  Furthermore, when  

the State Government tried to reserve 50% of the seats in  

the  Under-graduate  courses,  this  Court  granted  a  stay  

which continues to be operative.

30. Mr.  Salve  submitted  that  the  question  of  

reservation of seats in minority institutions, which has  

been  introduced  by  the  impugned  amendments,  both  in  

respect  of  the  Under-graduate  and  the  Post-Graduate  

courses,  does  violence  to  the  rights  conferred  on  

minorities  under  Article  30(1)  of  the  Constitution  of  

India, as interpreted by this Court in various judgments  

starting  from  1957  till  2002,  when  the  question  was  

finally decided by an Eleven-Judge Bench in the  T.M.A.  

Pai  Foundation case  (supra).   Even  the  reservation

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created for NRIs in Unni Krishnan's case (supra) case was  

declared to be ultra vires the Constitution of India.   

31. It  was  urged  that  in  a  recent  decision  of  this  

Court in the Indian Medical Association case (supra), it  

has, inter alia, been held that the level of regulation  

that the State could impose under Article 19(6) on the  

freedoms enjoyed pursuant to Sub-Clause (g) of Clause (1)  

of Article 19 by non-minority educational institutions,  

would be greater than what could be imposed on minority  

institutions under Article 30(1) thereof, which continued  

to maintain their minority status by admitting students  

mostly belonging to the minority community to which the  

minority  institutions  claim  to  belong,  except  for  a  

sprinkling of non-minority students, an expression which  

has been used in P.A. Inamdar's case and earlier cases as  

well.  Mr.  Salve  contended  that  the  Petitioner  

Institution, from its very inception reserved up to 85%  

of its seats in the Under-graduate courses and 50% of the  

Post-Graduate seats for Christian students exclusively.

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In the remaining 15% of the seats in the Under-graduate  

courses, reservations have been made for Scheduled Castes  

and Scheduled Tribes candidates.  

32. Mr. Salve contended that the impugned Notifications  

and the amendments to the MCI Regulations sought to be  

introduced  thereby   are   contrary  to  the  judgments  

delivered  by  the  Constitution  Bench.   Learned  counsel  

submitted that till the amendments were introduced, the  

concerned institutions had been conducting their own All  

India Entrance Tests for admission to the MBBS and Post-

Graduate medical courses.  Mr. Salve urged that there has  

been  no  complaint  of  maladministration  as  far  as  the  

institutions  run  by  the  Petitioner  Association  are  

concerned.

33. It was further submitted that all the Petitioners  

in  this  batch  of  cases  are  either  religious  minority  

educational  institutions  or  linguistic  minority  

institutions; non-minority self-financing colleges, self-

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financing "Deemed to be Universities" under Section 3 of  

the  University  Grants  Commission  Act  and  the  State  

Governments which run State medical colleges.  However,  

it is the Christian Medical College, Vellore, which is  

among the very few institutions that fall in the first  

category.  The learned counsel urged  that without demur,  

the  Christian  Medical  College,  Vellore,  has  been  

consistently rated among the top ten medical colleges in  

the  country  and  usually  ranked  first  or  second.  The  

excellence of patient care and academic training has been  

recognised,  both  at  the  national   and  international  

levels, and its contribution to health research has also  

been recognised as pioneering work by both national and  

international  research  funding  agencies.   Mr.  Salve  

submitted that a part of the teachings of Jesus Christ,  

as documented in the Gospels, which form part of the New  

Testament, was to reach out to and to heal the sick,  

which  command  has  been  institutionalised  by  the  

Petitioner ever since it was established as a one-bed

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mission clinic-cum-hospital in 1900. Mr. Salve submitted  

that the activities of the Petitioner Institution clearly  

attract the provisions  of Article 25 of the Constitution  

and through the Christian Medical College, Vellore, its  

activities are designed to achieve the avowed objective  

of providing human resources for the healing ministry of  

the Church. The activity of running medical courses and  

allied health sciences and nursing courses, in order to  

ensure constant supply of doctors and other para-medical  

staff to those hospitals, engaged in the healing of the  

sick, are acts performed by the Petitioner in furtherance  

of its religious faith and beliefs. It was submitted that  

in  the  decision  of  the  Constitution  Bench  of  Seven  

Hon'ble  Judges  in  the  case  of  Commissioner,  Hindu  

Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha  

Swamiar of Sri Shirur Mutt (1954 SCR 1005), this Court  

held that Article 25 of the Constitution, protects not  

only the freedom  of religious opinion, but also acts  

done in pursuance of religious beliefs, as is clear from

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the expression "practice of religion".   

34. Mr. Salve also referred to the decision in the case  

of  Ratilal Panachand Gandhi Vs.  The State of Bombay &  

others, reported  in  1954  SCR  1055,  which  was  also  a  

decision rendered by a Constitution Bench of this Court  

relying  upon  the  decision  in  the  Shirur  Mutt case  

(supra),  wherein  similar  sentiments  were  expressed.  

Various  other  decisions  on  the  same  issue  were  also  

referred to, which, however, need not detain us.

35. Mr.  Salve  further  urged  that  the  Petitioner  

Institution is still one of the largest tertiary care  

hospitals in the country, where patients come from all  

over  India  for  expert  treatment.  The  medical  college  

combines  both  medical  treatment  and  education  which,  

besides being a religious activity, is also a charitable  

activity, thereby bringing it within the ambit of Article  

26(a) and (b) of the Constitution. Mr. Salve submitted  

that, in fact, the said activities had been recognised by

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this Court in the  T.M.A. Pai Foundation  case (supra),  

wherein in paragraph 26, it was held as follows :-

"26. The  right  to  establish  and  maintain  educational  institutions  may  also be sourced to Article 26(a), which  grants, in positive terms, the right to  every  religious  denomination  or  any  section thereof to establish and maintain  institutions for religious and charitable  purposes,  subject  to  public  order,  morality  and  health.   Education  is  a  recognised head of charity.  Therefore,  religious  denominations  or  sections  thereof,  which  do  not  fall  within  the  special categories carved out in Article  29(1)  and  30(1),  have  the  right  to  establish  and  maintain  religious  and  educational institutions."

36. Today  the  Petitioner   has  in  place  a  selection  

process  for  admission  to  its  Under-graduate  and  Post-

graduate courses, by which it seeks to select candidates  

imbibed  in  the  spirit  of  Christ  for  the  purpose  of  

healing the sick and to dedicate their lives to serve the  

needy, both in the Petitioner Institution and also in far  

flung areas, where people have no ready access to medical  

care, through the Christian Mission Hospitals run by the

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members  of  the  Petitioner  Association.   Mr.  Salve  

submitted that the doctors, who are the product of the  

Petitioner  Institution,  are  not  only  well-trained  in  

medicine, but have also been imparted with values in the  

treatment of the sick and the needy in keeping with the  

teachings  of  Christ,  who  looked  on  everybody  with  

compassion.  Mr. Salve urged that the admission  process  

has proved to be highly successful and effective, and in  

the  case  of  St.  Stephen's  College Vs.  University of  

Delhi [(1992) 1 SCC 558], this Court upheld the same as  

it  was  found  to  meet  the  objectives  for  which  the  

Institution itself had been established, despite the fact  

that it was an aided minority institution.  Mr. Salve  

pointed out that in paragraph 54 of the judgment, this  

Court  had  occasion  to  deal  with  the  expression  

"management of the affairs of the institution” and it was  

held that this management must be free from control so  

that  the  founder  or  their  nominees  could  mould  the  

Institution as they thought fit and in accordance with

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the  ideas  of  how  the  interests  of  the  community  in  

general  and  the  institution  in  particular  could  be  

served.   

37. As far as unaided, non-capitation fee, religious  

minority institutions are concerned, Mr. Salve submitted  

that so long as the admission procedure adopted is fair,  

transparent  and  non-exploitative  and  there  is  no  

complaint  of  maladministration,  it  would  be  grossly  

unjust  and  unconstitutional  to  interfere  with  the  

administration  of  such  an  institution,  in  complete  

violence of the freedoms guaranteed under Articles 25, 26  

and 30 of the Constitution.   Mr. Salve submitted that if  

the  National  Eligibility-cum-Entrance  Test  was  to  be  

applied and followed in the case of minority institutions  

protected under Article 30 of the Constitution, it would  

result in complete denudation of the freedoms and rights  

guaranteed to such institutions under the Constitution,  

as it would run counter to the very principles on which  

admissions in such institutions are undertaken.

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38. Mr. Salve submitted that neither Section 10A nor  

Section 19A of the 1956 Act, which were inserted in the  

principal Statute by amendment, contemplate that the MCI  

would itself be entitled to conduct entrance tests for  

admission into different medical colleges and hospitals  

in  India.  Learned   counsel  submitted  that  the  main  

purpose of constituting the  MCI was to ensure excellence  

in  the  field  of  medical  education  and  for  the  said  

purpose, to regulate the standards of teaching and the  

infrastructure  available  for  establishment  of  a  new  

medical college or to introduce a new course of study in  

an existing college.  What is made clear from Section 10A  

is that no new medical college could be established and  

recognised  by  the  Central  Government  without  the  

recommendation of the Medical Council of India.  Such  

recognition  would  be  dependent  upon  inspection  and  

satisfaction  that  the  proposed  new  medical  college  

satisfied all the conditions stipulated by the Medical  

Council  of  India  for  starting  a  new  medical  college.

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Section 19A, which was inserted into the principal Act  

much before Section 10A, speaks of the minimum standards  

of medical education, other than post-graduate medical  

qualification,  which  the  Medical  Council  of  India  may  

prescribe as being required for grant of recognition to  

medical institutions in India.  

39. Mr. Salve urged that while Section 33 of the 1956  

Act empowered the Council, with the previous sanction of  

the Central Government, to make Regulations to carry out  

the  purposes  of  the  Act  and  clause  (l)  empowered  the  

Council to make Regulations with regard to the conduct of  

professional  examinations,  qualifications  of  examiners  

and the conditions of admission to such examinations, the  

same did not empower the Council  to actually conduct the  

examinations, which continues to be the prerogative of  

the institution concerned.

40. Mr. Salve submitted that in State of A.P. Vs. Lavu  

Narendranath[(1971) 1 SCC 607], this Court had considered

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the validity of a test held by the State Government for  

admission  to  medical  colleges  in  the  State  of  Andhra  

Pradesh and had held that although the Andhra University  

Act,  1926,  prescribed  the  minimum  qualification  of  

passing  HSC,  PUC,  ISC  examinations  for  entry  into  a  

higher course of study, owing to the limited number of  

seats, the Government, which ran the medical colleges,  

had a right to select students out of the large number of  

candidates  who  had  passed  the  entrance  examination  

prescribed by it. It was also held that merely because  

the Government had supplemented the eligibility rules by  

a written test in the subjects with which the candidates  

were already familiar, there was nothing unfair in the  

test prescribed nor did it militate against the powers of  

the Parliament under Entry 66 of List I, which is not  

relatable  to  a  screening  test  prescribed  by  the  

Government or by a University for selection of students  

out of a large number of students applying for admission  

to a particular course of study.  This Court held that

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such a test necessarily partakes of the character of an  

eligibility test as also a screening test.  Mr. Salve  

urged that in such a situation, minimum qualifying marks  

were  necessary,  but  the  said  question  has  not  been  

addressed  at  all  in  Lavu  Narendranath's  case  (supra),  

since it did not arise in that case.

41. Mr. Salve submitted that the Petitioner Institution  

has been supplementing the primary duty enjoined on the  

State under Articles 21 and 47 of the Constitution in  

providing health care to the people in different parts of  

the  country,  including  the  rural  and  remote  areas,  

through the several hospitals run by Christian Churches  

and organizations.  Any interference with the manner in  

which these minority institutions are being administered,  

except where the standards of excellence are compromised,  

would  not  only  strike  at  the  very  reason  for  their  

existence,  but  would  disturb  the  health  care  services  

being provided by them. Mr. Salve submitted that the MCI,  

which is a creature of Statute, cannot travel beyond the

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powers vested in it by the Statute and its attempt  to  

regulate and control the manner in which admissions are  

to be undertaken in these institutions, by introducing a  

single entrance examination, goes against the very grain  

of the fundamental rights vested in the religious and  

linguistic  minorities  to  establish  and  administer  

educational institutions of their choice and to impart  

their religious values therein, so long as the same was  

not against the peace and security of the State.

42.  Mr. Salve urged that the amended provisions of the  

MCI Regulations as impugned, were liable to be struck  

down as being contrary to the provisions of Articles 25,  

26 and 30 of the Constitution, read with Sections 10A and  

19A of the Indian Medical Council Act, 1956.

43. Having heard Mr. Harish Salve on the rights claimed  

by religious minority medical institution enjoying the  

protection  of  Articles  25,  26,  29(1)  and  30  of  the  

Constitution, we may now turn to the submissions made by

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Mr. K. Parasaran, learned Senior Advocate, appearing on  

behalf  of  the  Vinayaka  Missions  University,  run  by  a  

linguistic minority, also enjoying the rights guaranteed  

under Article 19(1)(g) and the protection of Article 30  

of the Constitution.

44.   Mr.  Parasaran  began  by  reiterating  Mr.  Salve's  

submission that while minority institutions enjoyed the  

fundamental rights guaranteed to any other individual or  

institution under Article 19(1)(g) of the Constitution,  

in  addition,  linguistic  minorities,  like  religious  

minorities, enjoy the special protection afforded under  

Article 30 of the Constitution.  Mr. Parasaran submitted  

that  just  as  in  the  case  of  religious  minorities,  

linguistic minorities also have the right to establish  

and administer educational institutions of their choice,  

which included the right to admit students therein.  

45.  Mr.  Parasaran  submitted  that  the  impugned  

Regulations  are  ultra  vires,  unconstitutional  and

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violative of Article 19(1)(g) of the Constitution, not  

only in respect of institutions run by minorities, but  

also to all institutions covered by NEET.  Mr. Parasaran  

submitted that if the Indian Medical Council Act, 1956,  

is to be understood to empower the MCI to nominate the  

students for admission, it would be invalid,  since the  

said  Act  and  the  amendments  to  the  Act,  which  are  

relevant for the present cases, were enacted before the  

42nd Constitution Amendment, whereby Entry 11 was removed  

from List II of the Seventh Schedule and was relocated as  

Entry 25 in List III of the said Schedule, came into  

force on 3rd January, 1977.

46. Mr. Parasaran also urged that as was held by this  

Court in  Indian Express Newspapers Vs.  Union of India  

[(1985) 1 SCC 641], even if the Regulations are accepted  

to be subordinate legislation, the same were also open to  

challenge:

(a) on  the  ground  on  which  plenary  legislation is questioned.

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(b) on the ground that it does not conform to  the statute under which it is made.

(c) on the ground that it is contrary to some  other  statute  as  it  should  yield  to  plenary  legislation, and/or

(d) that it is manifestly unreasonable.

47. Mr.  Parasaran  submitted  that  in  Deep  Chand Vs.  

State of Uttar Pradesh and Others [(1959) Suppl. 2 SCR 8]  

wherein the validity of certain provisions of the Uttar  

Pradesh Transport Service (Development) Act, 1955,  came  

to be considered on the passing of the Motor Vehicles  

(Amendment) Act, 1956, the majority view was that the  

entire  Act  did  not  become  wholly  void  under  Article  

254(1) of the Constitution, but continued to be valid in  

so far as it supported  the Scheme already framed under  

the U.P. Act.     

48. Mr. Parasaran contended that a standard must have  

general application and inter se merit does not relate to  

standards, but is a comparison of an assessment of merit  

among the eligible candidates.   

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49.  Mr. Parasaran submitted that the legislative power  

under Entry 11 of List II stood transferred to List III  

only by virtue of the Forty-second Amendment with effect  

from 3rd January, 1977 and  the power so acquired by  

virtue  of  the  amendment,  could  not  validate  an  Act  

enacted  before  the  acquisition  of  such  power.  Mr.  

Parasaran urged that while the Indian Medical Council Act  

was enacted in 1956, Section 19A on which great reliance  

was  placed  by  Mr.  Nidhesh  Gupta,  learned  Advocate  

appearing for the MCI, was brought into the Statute Book  

on 16th June, 1964.  Consequently the 1956 Act, as also  

the Regulations, are ultra vires, except to the extent  

covered by Entry 66 of List I, which is confined to "co-

ordination and determination of standards".   

50. Referring to the decision of this Court in State of  

Orissa Vs.  M.A. Tulloch & Co. [(1964) 4 SCR 461], Mr.  

Parasaran  contended  that  as  the  State's  powers  of  

legislation  are  subject  to  Parliamentary  legislation

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under Entry 66  of List I, when Parliament legislates, to  

that extent alone the State is denuded of its legislative  

power.   A  denudation  of  the  power  of  the  State  

legislature can be effected only by a plenary legislation  

and  not  by  subordinate  legislation.   The  Regulations,  

which are not plenary in character, but have the effect  

of  denuding  the  power  of  the  State  legislature,  are,  

therefore, ultra vires.    

51. Another  interesting  submission  urged  by  Mr.  

Parasaran  was  that  the  principle  of  "Rag  Bag”  

legislation, as was explained by this Court in  Ujagar  

Prints etc. Vs. Union of India [(1989) 3 SCC 488], cannot  

be invoked by combining the Entries in List I and List  

III in cases where the field of legislation in List III  

is expressly made subject to an Entry in List I.  In such  

cases, while enacting a legislation on a subject in List  

III, Parliament is also subject to the Entry in List I in  

the same way as the State legislature, as the field of  

legislation in the Concurrent List is the same as far as

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the Parliament and the State legislatures for admission  

of students to professional courses, are concerned.  Mr.  

Parasaran urged that the decision in Preeti Srivastava's  

case (supra) has to be interpreted harmoniously with the  

decision in  M.A. Tulloch's case (supra),  Ishwari Khetan  

Vs.  State of U.P. [(1980) 4 SCC 136] and  Deep Chand's  

case  (supra),  as  otherwise  the  findings  in  Preeti  

Srivastava's case (supra) would be rendered per incuriam  

for  not  taking  note  of  the  fact  that  the  power  of  

Parliament  under  Entry  25  of  List  III  was  an  after  

acquired power.  Mr. Parasaran emphasised the fact that  

the reasoning in Preeti Srivastava's case (supra) related  

only to the question of the State's power to prescribe  

different admission criteria to the Post-graduate courses  

in Engineering and medicine and cannot be held to govern  

the admission of students to the said courses.  Learned  

counsel  submitted  that  the  decision  in  Preeti  

Srivastava's  case  (supra)  has  to  be  confined  only  to  

eligibility  standards  for  admission  and  not  to  issues

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relating to admission itself.  Mr. Parasaran also pointed  

out  that  in  Preeti  Srivastava's  case  (supra),  the  

decision  in  Deep  Chand's  case  (supra)  had  not  been  

considered and the fact that Parliament had no power to  

legislate with regard to matters which were then in Entry  

11 of List II had been overlooked.  The Court, therefore,  

erroneously proceeded on the basis of the powers given to  

Parliament  by  virtue  of  Entry  25  of  List  III  by  the  

Forty-second Amendment.  Mr. Parasaran urged that to the  

extent it is inconsistent with the decision in the T.M.A.  

Pai Foundation case (supra), as to the right of admission  

by  private  institutions,  the  decision  in  Preeti  

Srivastava's  case  (supra)  will  have  to  yield  to  the  

principles laid down by the larger Bench in the  T.M.A.  

Pai  Foundation case  (supra).   Mr.  Parasaran  submitted  

that  the  effect  of  the  impugned  Regulations  in  the  

context  of  the  prevailing  law  is  that  private  

institutions  may  establish  educational  institutions  at  

huge costs and provide for teaching and lectures, but

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without  any  right,  power  or  discretion  to  run  the  

college,  even  to  the  extent  of  admitting  students  

therein.   Mr.  Parasaran  contended  that  by  the  

introduction  of  NEET  the  States  and  Universities  in  

States stand completely  deprived of the right to deal  

with admissions, which has the effect of destroying the  

federal structure of the Constitution.  

52. Mr. Parasaran urged that the executive power of the  

State, which is co-extensive with the legislative power  

with regard to matters in the Concurrent List, cannot be  

taken  away  except  as  expressly  provided  by  the  

Constitution or by any law made by Parliament. It was  

urged  that  the  power  of  subordinate  legislation  or  

statutory power conferred by a Parliamentary legislation  

cannot be exercised to take away the legislative power of  

the  State  legislature,  which  could  only  be  done  by  

plenary legislation under Article 73 of the Constitution.  

Mr. Parasaran submitted that the impugned Regulations,  

not being plenary legislation, are unconstitutional and

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ultra vires the Constitution.  

53. Mr.  Parasaran  submitted  that  the  impugned  

Regulations  provide  that  if  sufficient  number  of  

candidates in the respective categories fail to secure  

minimum marks as prescribed in NEET, held both for Post-

graduate and graduate courses, the Central Government, in  

consultation with the Medical Council of India, may at  

its  discretion  lower  the  minimum  marks  for  admission,  

which itself indicates that the Regulations are concerned  

not with determination of standards, but with admissions.

54. Mr.  Parasaran  further  submitted  that  the  Scheme  

framed  in  Unni  Krishnan's  case  (supra)  completely  

excluded  the  discretion  of  the  institution  to  admit  

students and the same was, therefore, overruled in the  

T.M.A.  Pai  Foundation  case  as  having  the  effect  of  

nationalising education in respect of important features  

viz.  right  of  a  private  unaided  institution  to  give  

admission and to fix the fees.  Mr. Parasaran submitted

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that the impugned Regulations suffer from the same vice  

of  a  complete  take-over  of  the  process  of  admission,  

which rendered the impugned Regulations unconstitutional.  

55. Mr.  Parasaran  further  urged  that  minorities,  

whether  based  on  religion  or  language,  also  have  a  

fundamental right under Article 19(1)(g), like any other  

citizen, to practise any profession, or to carry on any  

occupation,  trade  or  business  in  the  interest  of  the  

general public, but subject to reasonable restrictions  

that may be imposed by the State on the exercise of such  

rights.   In  addition,  minorities  have  the  right  

guaranteed under Article 30 to establish and administer  

educational institutions of their choice. Considering the  

right  of  both  minority  and  non-minority  citizens  to  

establish and administer educational institutions, this  

Court had in the T.M.A. Pai Foundation case (supra) held  

that the said right includes the right to admit students  

and  to  nominate  students  for  admission  and  even  when  

students  are  required  to  be  selected  on  the  basis  of

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merit, the ultimate decision to grant admission to the  

students  who  have  otherwise  qualified  for  the  said  

purpose, must be left with the educational institutions  

concerned. Mr. Parasaran submitted that in the T.M.A. Pai  

Foundation case (supra), this Court, inter alia, observed  

that  the  fixing  of  a  rigid  fee  structure,  compulsory  

nomination  of  teachers  and  staff  for  appointment  or  

nominating students for admission would be unreasonable  

restrictions.      

56.  Mr. Parasaran also urged that the right of minority  

institutions under Article 30 is in the national interest  

and as indicated in the decision in Unni Krishnan's case  

(supra), the hard reality that emerges is that private  

educational institutions are a necessity in the present-

day circumstances.  It is not possible today without them  

because the Governments are in no position to meet the  

demand,  particularly  in  the  sectors  of  medical  and  

technical  education,  which  call  for  substantial  

investments and expenses.  Mr. Parasaran submitted that

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the  impugned  Regulations  were  not  in  the  national  

interest  and  would  only  discourage  good  private  

institutions being established by people dedicated to the  

cause of providing health care to all sections of the  

citizens  of  this  country  and,  in  particular,  the  

marginalized  sections  in  the  metropolitan  and  rural  

areas.    

57. Mr.  Parasaran  then  urged  that  50%  of  the  total  

seats available, as per Clause VI of the Post-Graduate  

Medical Education Regulations, were to be filled up by  

the  State  Governments  or  the  Authorities  appointed  by  

them.  The remaining 50% seats are to be filled up by the  

concerned medical colleges and institutions on the basis  

of  the  merit  list  prepared  according  to  the  marks  

obtained in NEET.  Mr. Parasaran submitted that there is  

a similar provision in the 1997 Regulations applicable to  

the Graduate M.B.B.S. course.  Noticing the same, this  

Court  in  P.A.  Inamdar's  case  (supra)  categorically  

indicated that nowhere in the T.M.A. Pai Foundation case

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(supra), either in the majority or in the minority views,  

could  any  justification  be  found  for  imposing  seat  

sharing  quota  by  the  State  on  unaided  private  

professional  educational  institutions.   Clarifying  the  

position this Court observed that fixation of percentage  

of  quota  are  to  be  read  and  understood  as  consensual  

arrangements which may be reached between unaided private  

professional institutions and the State.  Mr. Parasaran  

urged that the Regulations providing for a quota of 50%  

are, therefore, invalid.  

58.  Mr. Parasaran urged that in  P.A. Inamdar's case  

(supra), this Court had held that private institutions  

could follow an admission procedure if the same satisfied  

the  triple  test  of  being  fair,  transparent  and  non-

exploitative.  It is only when an institution failed the  

triple test, could the State interfere and substitute its  

own fair and transparent procedure, but the same cannot  

become a procedure by destroying the very right of the  

private institutions to hold their own test in the first

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instance.   Mr.  Parasaran  urged  that  the  purpose  of  a  

common  entrance  test  is  to  compute  the  equivalence  

between different kinds of qualifications and to ensure  

that those seeking entry into a medical institute did not  

have  to  appear  for  multiple  tests,  but  it  could  not  

justify the extinguishing of the right to admit and to  

reject  candidates  on  a  fair,  transparent  and  non-

exploitative basis from out of the eligible candidates  

under NEET.  Mr. Parasaran reiterated that ultimately it  

is the institutions which must have the right to decide  

the admission of candidates.  

59.  Mr. Parasaran submitted that in Pradeep   Jain Vs.  

Union of India [(1984) 3 SCC 654], this Court has held  

that university-wise distribution of seats is valid.  The  

learned Judges fully considered the mandate of equality  

and pointed out the need to take into account different  

considerations relating to differing levels of social,  

economic  and  educational  development  of  different  

regions, disparity in the number of seats available in

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different States and the difficulties that may be faced  

by  students  from  one  region,  if  they  get  a  seat  in  

another  region.   This  Court  held  that  an  All  India  

Entrance  Examination  would  only  create  a  mirage  of  

equality of opportunity and would, in reality, deprive  

large sections of underprivileged students from pursuing  

higher education. Though attractive at first blush, an  

All  India  Entrance  Examination  would  actually  be  

detrimental to the interests of the students hoping for  

admission to the M.B.B.S. and Post-graduate courses.  

60. Mr. Parasaran submitted that since all judgments on  

the subject were by Benches which were of lesser strength  

as compared to the  T.M.A. Pai Foundation case (supra),  

all other decisions of this Court, both before and after  

the decision in the  T.M.A. Pai Foundation case (supra),  

would, therefore, have to be read harmoniously with the  

principles enunciated in the  T.M.A. Pai Foundation case  

(supra).   In  case  some  of  the  cases  cannot  be  

harmoniously read, then the principles laid down in the

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T.M.A. Pai Foundation case (supra) will have primacy and  

will have to be followed.  Mr. Parasaran submitted that  

the  observations  as  to  standard  and  merit  in  Preeti  

Srivsatava's  case  (supra)  and  in  P.A.  Inamdar's  case  

(supra),  have  to  be  understood  as  conforming  to  the  

decision in the  T.M.A. Pai Foundation case (supra).  Mr.  

Parasaran submitted that the flourish of language in the  

judgments of Benches of lesser strength cannot be read so  

as to dilute the ratio of the decision of Benches of  

larger strength.  Mr. Parasaran urged that consequently  

the  right  to  admit  students  by  unaided  private  

institutions,  both  aided  and  unaided  minority  

institutions, as part of their right to administer the  

institution, as guaranteed under Articles 19(1)(g), 25,  

26, 29(1) and 30 of the Constitution, cannot be taken  

away  even  by  way  of  plenary  jurisdiction,  which  the  

impugned Regulations are not.     

61. Mr. Parasaran submitted that in the case of aided  

non-minority institutions, the State may by Regulation

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provide for a larger role for the State in relation to  

matters  of  admission.   Mr.  Parasaran  urged  that  the  

impugned Regulations being only regulatory in character,  

they cannot destroy the right itself.

62. Dr.  Rajiv  Dhawan,  learned  senior  counsel,  who  

appeared on behalf of Yenepoya University in Transferred  

Case  Nos.  135-137  of  2012  and  also  for  the  Karnataka  

Religious and Linguistic Minority Professional Colleges  

Association  in  Transferred  Case  Nos.  121-122  of  2012,  

submitted that although the issues involved in the said  

cases have already been argued in extenso by Mr. Salve  

and Mr. Parasaran, as part of the main issue, it has to  

be decided whether NEET violates the fundamental right  

guaranteed to minorities, both religious and linguistic,  

to impart medical education, as explained in the  T.M.A.  

Pai  Foundation case  (supra)  and  other  subsequent  

decisions and even if found to be  intra vires, is it  

manifestly unjust and arbitrary?  It was further urged  

that  it  would  also  have  to  be  decided  whether  the

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doctrine  of  severability,  reading  down  and  

proportionality,  could  be  effected  to  the  impugned  

Regulations.   

63. Dr.  Dhawan  urged  that  the  T.M.A.  Pai  Foundation  

case  (supra)  resolved  several  issues  where  there  was  

still  some  doubt  on  account  of  decisions  rendered  in  

different cases.  Dr. Dhawan urged that it was held that  

the  decision  in  the  Unni  Krishnan's  case  (supra)  was  

wrong to the extent that "free seats" were to go to the  

privileged  and  that  education  was  being  nationalised  

which took over the autonomy of institutions. It was also  

observed that the expanding needs of education entailed a  

combined use of resources both of the Government and the  

private sector, since the imparting of education was too  

large a portfolio for the Government alone to manage.   

64. Dr.  Dhawan  urged  that  the  other  issue  of  

importance,  which  was  also  decided,  was  the  right  of  

autonomy  of  institutions  which  were  protected  under

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Article  30  of  the  Constitution,  which,  inter  alia,  

included the right to admit students.   

It was also settled that unaided institutions were  

to have maximum autonomy while aided institutions were to  

have  a  lesser  autonomy,  but  not  to  be  treated  as  

"departmentally run by government".   

65.  Dr.  Dhawan  submitted  that  the  decision  in  the  

T.M.A. Pai Foundation case (supra) also settled the issue  

that affiliation and recognition has to be available to  

every institution that fulfills the conditions for grant  

of  such  affiliation  and  recognition.  Learned  Senior  

Counsel submitted that surrendering the total process of  

selection to the State was unreasonable, as was sought to  

be done in the Scheme formulated in Unni Krishnan's case  

(supra). The said trend of the decisions was sought to be  

corrected in the T.M.A. Pai Foundation case (supra) where  

it was categorically held that minority institutions had  

the right to "mould the institution as they think fit",

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bearing  in  mind   that  "minority  institutions  have  a  

personality of their own, and in order to maintain their  

atmosphere and traditions, it is but necessary that they  

must have a right to choose and select the students who  

can be admitted in their course of study."  It is for  

this  reason  that  in  the  St.  Stephen's  College case  

(supra), this Court upheld the Scheme whereby a cut-off  

percentage  was  fixed  for  admission  after  which  the  

students were interviewed and, thereafter, selected.  It  

was  also  laid  down  that  while  the  educational  

institutions  cannot  grant  admission  on  its  whims  and  

fancies and must follow some identifiable or reasonable  

methodology of admitting students, any scheme, rule or  

regulation that does not give the institution the right  

to  reject  candidates  who  might  otherwise  be  qualified  

according to, say their performance in an entrance test,  

would be an unreasonable restriction under Article 19(6),  

though appropriate guidelines/ modalities can always be  

prescribed for holding the entrance test in a fair and

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transparent manner.   

66. Again in paragraphs 158 and 159 of the judgment in  

the T.M.A. Pai Foundation case (supra), it has been very  

picturesquely expressed that India is a kaleidoscope of  

different  peoples  of  different  cultures  and  that  all  

pieces of mosaic had to be in harmony in order to give a  

whole picture of India which would otherwise be scarred.  

Their  Lordships  very  poetically  indicated  that  each  

piece, like a citizen of India, plays an important part  

in  the  making  of  the  whole.   The  variations  of  the  

colours as well as different shades of the same colour in  

a map are the result of these small pieces of different  

shades and colours or marble, but even when one small  

piece  of  marble  is  removed,  the  whole  map  would  be  

disfigured, and the beauty of the mosaic would be lost.  

67.   Referring to the separate decision rendered by Ruma  

Pal, J., in the T.M.A. Pai Foundation case (supra),  Dr.  

Dhawan  submitted  that  the  learned   Judge  had  also

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artistically  distinguished  Indian  secularism  from  

American secularism by calling Indian secularism "a salad  

bowl" and not a "melting pot".

68. Dr. Dhawan urged that a combined reading of the  

decision  in  Islamic  Academy's  case (supra)  and  P.A.  

Inamdar's  case  (supra)  suggests  that  (i)  no  unaided  

institutions can be compelled to accept reservations made  

by the State, except by voluntary agreement; and (ii) the  

right to (a) admit and select students of their choice by  

pursuing individual or associational tests and (b) fix  

fees on a non-profit basis is a right available to all  

educational institutions, but the admissions were to be  

made on a fair, transparent and non exploitative method,  

based on merit.    

69.  On Article 15(5) of the Constitution, Dr. Dhawan  

contended that the same was included in the Constitution  

by the Constitution (93rd Amendment) Act, with the object  

of  over  turning  the  decision  in  P.A.  Inamdar's  case

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(supra) on voluntary reservations.   Dr. Dhawan submitted  

that  the  said  provision  would  make  it  clear  that  the  

State  reservations  do  not  apply  to  "minority  

institutions" enjoying the protection of Article 30 and  

it  is  on  such  basis  that  in  the  Society  for  Unaided  

Private Schools of Rajasthan Vs. Union of India [(2012) 6  

SCC 1], this Court held that a minority institution could  

not be forced to accept the statutory reservation also.  

Dr.  Dhawan  urged  that  the  impact  of  the  T.M.A.  Pai  

Foundation case (supra) and subsequent decisions is that  

all institutions, and especially minority institutions,  

have  the  constitutional  right  to  select  and  admit  

students of their choice and conduct their own tests,  

subject to minimum standards which could be enhanced but  

not lowered by the States.

70. Dr.  Dhawan  also  referred  to  the  issue  of  

equivalence  between  various  Boards  and  uniformity  and  

convenience.   Learned  counsel  submitted  that  the  

distinction was recognized in the case of  Rajan Purohit

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Vs.  Rajasthan University of Health Sciences [(2012) 10  

SCC 770], wherein it was observed that the problem of  

equivalence could be resolved by the college or group of  

colleges, either by finding a method of equivalence to  

reconcile difference of standards between various Boards,  

or by the college or group of colleges evolving a Common  

Entrance  Test  to  overcome  the  problem  of  equivalence.  

Dr.  Dhawan  submitted  that  the  said  issue  had  been  

addressed  in  the  T.M.A.  Pai  Foundation (supra),  which  

continues to hold the field in respect of common issues.  

Dr. Dhawan urged that consistent with the views expressed  

in  the  T.M.A.  Pai  Foundation case  (supra)  and  the  

importance of autonomy and voluntarism, the same could  

not  be  impinged  upon  by  nationalizing  the  process  of  

admission itself for both the purposes of eligibility and  

selection, unless a college failed to abide by the triple  

requirements laid down in P.A. Inamdar's case (supra).

71. In regard to the decision in  Lavu Narendranath's  

case  (supra),  which  had  been  relied  upon  by  Mr.  K.

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Parasaran, Dr. Dhawan contended that the same was based  

upon the understanding that Entry 66 of List I had no  

relation with tests for screening and selecting students  

prescribed by the States or Universities for admission,  

but only to coordinate standards.  The scope of the said  

Entry did not deal with the method of admission, which  

was within the constitutional powers of the State and the  

Universities.  Dr.  Dhawan  submitted  that  the  decision  

rendered  in  Preeti  Srivastava's  case  (supra)  also  

expressed  similar  views  regarding  laying  down  of  

standards for admission into the Post-graduate medical  

courses, which meant that government and universities had  

exclusive control over admission tests and the criteria  

of  selection  in  higher  education,  subject  to  minimum  

standards  laid  down  by  the  Union,  unless  Union  

legislation,  relatable  to  Entry  25  of  List  III,  was  

passed to override the States' endeavours in this regard.

72.  Dr. Dhawan contended that the demarcation sought to  

be made in  Lavu Narendranath's case (supra) found favour

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in subsequent cases, such as in the case of State of M.P.  

Vs. Nivedita Jain [(1981) 4 SCC 296], wherein a Bench of  

Three Judges took the view that Entry 66 of List I of the  

Seventh  Schedule  to  the  Constitution  relates  to  

"coordination  and  determination  of  standards  in  

institutions  for  higher  education  or  research  and  

scientific  and  technical  institutions".   The  said  

sentiments were reiterated by this Court in  Ajay Kumar  

Singh Vs. State of Bihar [(1994) 4 SCC 401].  However, in  

Preeti Srivastava's case (supra), the Constitution Bench  

overruled the decision in the said two cases.  But, as  

urged by Dr. Dhawan, by holding that Entry 66 of List I  

was not relatable to a screening test prescribed by the  

Government or by a University for selection of students  

from  out  of  a  large  number  for  admission  to  any  

particular course of study, the Constitution Bench also  

accepted that the powers of the MCI under List I, Entry  

66, did not extend to selection of students.  Dr. Dhawan  

urged that although Preeti Srivastava's case (supra) had

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been confined to its facts, it went beyond the same on  

account of interpretation of the scope of List I, Entry  

66  and  extending  the  same  to  the  admission  process,  

simply because admission also related to standards and  

upon holding that the Union Parliament also had the power  

to  legislate  for  the  MCI  in  the  matter  of  admission  

criteria under Entry 25, List III.

   Dr. Dhawan submitted that the two aforesaid issues  

had  the  potentiality  of  denuding  the  States  and  the  

private  institutions,  including  minority  institutions  

enjoying the protection of Article 30, of their powers  

over the admission process and in the bargain upset the  

Federal balance.    

73. The validity of the impugned Regulations was also  

questioned by Dr. Dhawan on the ground that Sections 19A  

and 20 of the 1956 Act authorises the MCI to prescribe  

the minimum standards of medical education required for  

granting recognised medical qualifications in India, but

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copies of the draft regulations and of all subsequent  

amendments thereof are required to be furnished by the  

Council to all State Governments and the Council, before  

submitting the Regulations or any amendment thereto to  

the Central Government for sanction, is required to take  

into consideration the comments of any State Government  

received  within  three  months  from  the  furnishing  of  

copies of the said Regulations. Dr. Dhawan submitted that  

such consultation was never undertaken by the MCI before  

the Regulations were amended, which has rendered the said  

Regulations  invalid  and  by  virtue  of  the  decisions  

rendered in  Lavu Narendranath's case (supra) and  Preeti  

Srivastava's case (supra), they cannot be reinstated by  

virtue of Entry 25 List III.   

 74. Dr. Dhawan urged that while the power of the MCI to  

frame Regulations is under Section 33 of the 1956 Act,  

the role of the MCI is limited to that of a recommending  

or  a  consulting  body  to  provide  standards  which  are  

required to be maintained for the purpose of running the

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medical institution, and would not include admission of  

students  to  the  Under-graduate  and  the  Post-graduate  

courses.  Dr. Dhawan urged that the said powers could not  

have  been  extended  to  controlling  admissions  in  the  

medical  colleges  and  medical  institutions  run  by  the  

State and private authorities.  Dr. Dhawan submitted that  

as was held by this Court in  State of Karnataka Vs.  H.  

Ganesh Kamath [(1983) 2 SCC 402], "It is a well-settled  

principle  of  interpretation  of  statutes  that  the  

conferment of rule-making power by an Act does not enable  

the rule-making authority to make a rule which travels  

beyond  the  scope  of  the  enabling  Act  or  which  is  

inconsistent  therewith  or  repugnant  thereto."   While  

accepting that delegated legislation is necessary, Dr.  

Dhawan urged that it must remain within the contours of  

the rule or regulation-making power and the purpose for  

which it is given, as was held by this Court in  St.  

John's Teachers Training Institute Vs. Regional Director,  

National Council for Teacher  Education [(2003) 3 SCC

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321].   

75. Dr. Dhawan also questioned the vires of the amended  

provisions  of  the  MCI  Rules  on  the  ground  of  

unreasonableness and arbitrariness and urged that in both  

cases  the  Court  would  be  justified  in  invoking  the  

doctrine  of  proportionality,  as  was  observed  by  this  

Court in Om Prakash Vs. State of U.P. [(2004) 3 SCC 402].  

Dr.  Dhawan  submitted  that  the  only  way  in  which  the  

impugned  Regulations  could  possibly  be  saved  is  by  

reading them down to bring them in conformity with the  

constitutional legislation and the law laid down by the  

Supreme Court.

76. Dr. Dhawan urged that admission of students in all  

the  medical  institutions  in  India  on  the  basis  of  a  

single eligibility-cum-entrance examination, was not only  

beyond  the  scope  of  the  powers  vested  in  the  Medical  

Council of India to make Regulations under Section 33 of  

the  1956  Act,  but  the  same  were  also  arbitrary  and

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unreasonable, not having been framed in consultation with  

the  States  and  without  obtaining  their  response  in  

respect thereof.  More over, the same runs counter to the  

decision of this Court in the T.M.A. Pai Foundation case  

(supra)  making  it  clear  that  the  MCI  was  only  a  

regulatory and/or advisory body having the power to lay  

down the standards in the curricula, but not to interfere  

with the process of admission, which would be the obvious  

fall-out  of  a  single  NEET  conducted  by  the  MCI.  Dr.  

Dhawan concluded on the note that uniformity for its own  

sake  is  of  little  use  when  the  end  result  does  not  

achieve the objects for which the Regulations have been  

introduced.   

77. Appearing  for  Sri  Ramachandra  University  in  

Transferred Case Nos.1 & 3 of 2013, Mr. Ajit Kumar Sinha,  

learned  Senior  Advocate,  questioned  the  vires of  the  

impugned regulations more or less on the same grounds as  

canvassed by Mr. Salve, Mr. K. Parasaran and Dr. Dhawan.  

Mr.  Sinha  also  reiterated  the  fact  that  in  Preeti

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Srivastava's case (supra), this Court did not notice the  

decision in Deep Chand's case (supra) and overlooked the  

fact  that  Parliament  had  no  power  to  legislate  with  

regard to matters which were then in Entry 11 of List II  

of the Seventh Schedule. Mr. Sinha submitted that the  

decision  in  Preeti  Srivastava's  case  (supra)  must,  

therefore, be held to be per incuriam.   

78. Mr.  Sinha  urged  that  neither  Section  19A  nor  

Section 2(h) contemplates the holding of a pre-medical  

entrance test for admission into all medical institutions  

in the country, irrespective of who had established such  

institutions and were administering the same. Mr. Sinha  

urged that the impugned Regulations were liable to be  

struck  down  on  such  ground  as  well,  as  it  sought  to  

unlawfully curtail the powers of the persons running such  

medical institutions in the country.

79. Mr.  P.P.  Rao,  learned  Senior  Advocate,  who  

initially appeared for the State of Andhra Pradesh in

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Transferred Case No.102 of 2012, submitted that as far as  

the State of Andhra Pradesh is concerned, admission into  

educational institutions was governed by a Presidential  

Order dated 10th May, 1979, issued under Article 371D of  

the  Constitution,  inter  alia,  providing  for  minimum  

educational qualifications and conditions of eligibility  

for admission to the MBBS, B.Sc. Course, etc.  Mr. Rao  

submitted that being a special provision it prevails in  

the  State  of  Andhra  Pradesh  over  other  similar  

legislations.

80. Subsequently, Mr. L. Nageshwara Rao, learned Senior  

Advocate, appeared for the State of Andhra Pradesh in the  

said  Transferred  Case  and  also  in  Transferred  Cases  

Nos.100 and 101 of 2012, 103 of 2012, Transfer Petition  

(C)  Nos.1671  and  1645  of  2012  and  Writ  Petition  (C)  

No.464  of  2012.  In  addition,  Mr.  Nageswara  Rao  also  

appeared for the State of Tamil Nadu in Transferred Case  

Nos.110 and 111 of 2012 and for the Tamil Nadu Deemed  

University Association in Transferred Cases Nos. 356 and

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357 of 2012 and Writ Petition (C) No.27 of 2013.   

81. Continuing from where Mr. P.P. Rao left off,  Mr.  

Nageswara  Rao  submitted  that  in  conformity  with  the  

aforesaid Presidential Order, the State of Andhra Pradesh  

enacted the A.P. Educational Institutions (Regulation of  

Admissions and Prohibition of Capitation Fee) Act, 1983,  

defining,  inter alia, "local area", "local candidate",  

"educational  institutions"  and  "relevant  qualifying  

examinations".  Mr. Rao pointed out that Section 5 of the  

Act  provides  for  reservation  in  non-State-  Wide  

Universities  and  Education  Institutions  in  favour  of  

local candidates while Section 6 provides for reservation  

in  State-wide  Universities  and  State-wide  Educational  

Institutions  for  local  candidates.   Mr.  Rao  submitted  

that the impugned Notification of the Medical Council of  

India  cannot  be  given  effect  to  in  view  of  the  

Presidential  Order  made  under  Article  371D  of  the  

Constitution and the 1983 Act enacted in pursuance of the  

said Order.  

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82. Mr. Rao submitted that if  the Medical Council of  

India could or should hold a National Eligibility-cum-

Entrance Test, it would have the effect of denuding the  

State and the educational institutions of their right to  

establish and administer educational institutions which  

enjoy the protection of Articles 19(1)(g), 25, 26 and 30  

of the Constitution.   

83. With  regard  to  the  State  of  Tamil  Nadu  and  the  

Deemed  University  Association,  Mr.  Rao  confined  his  

submissions to Entry 25 of List III, in relation to Entry  

66 of List I.  Mr. Rao reiterated the submissions made  

earlier that the subject matter of Entry 66 of List I is  

for  "coordination  and  determination  of  standards"  in  

institutions  for  higher  education  and  that  the  

determination of standards also falls within Entry 25 of  

List  III  only  when  coordination  and  determination  of  

standards  are  dealt  together  with  the  State  enactment  

made subject to legislation under Entry 66 of List I. Mr.  

Rao  submitted  that  the  denudation  of  the  legislative

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power of the State Legislature could only be by plenary  

legislation  made  under  Entry  66  of  List  I  read  with  

Article 246 of the Constitution and not by subordinate  

legislation which renders the impugned regulations ultra  

vires the aforesaid provisions of the Constitution.

84. While dealing with the aforesaid questions, Mr. Rao  

also  submitted  that  the  Notification  contemplates  the  

conducting of a common entrance test for all the dental  

colleges  throughout  India,  without  considering  the  

different streams of education prevalent in India such as  

CBSE, ICSE, State Boards, etc., prevailing in different  

States.  The different standards of education prevalent  

in different States had not been taken into consideration  

and in such factual background, the holding of a Single  

Common Entrance Test for admission to the B.D.S. and the  

M.D.S.  courses  in  all  the  dental  colleges  throughout  

India,  would  lead  to  violation  of  Article  14  of  the  

Constitution,  since  there  is  no  intelligible  object  

sought to be achieved by such amended regulations.  

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85. Mr. Rao also questioned the provision made by the  

amendment dated 15th February, 2012, to the Notification  

dated 21st December, 2010, reserving admission to Post-

graduate  Diploma  Courses  for  Medical  Officers  in  the  

Government  Service,  who  acquired  30%  marks,  as  being  

wholly  unrelated  to  merit  in  the  entrance  examination  

and,  therefore,  making  such  reservation  arbitrary  and  

irrational.  Mr. Rao submitted that there is no rationale  

in giving this benefit only to whose who are serving in  

Government/public authorities with regard to service in  

remote/difficult  areas.   Mr.  Rao  urged  that  the  

Government  of  Tamil  Nadu  has  consistently  opposed  the  

proposal to apply the National Eligibility-cum-Entrance  

Test to determine admission to different medical colleges  

and  institutions.   Mr.  Rao  submitted  that  when  the  

Notification was first issued on 27th December, 2010, the  

Government of Tamil Nadu challenged the same by way of  

Writ  Petition  No.  342  of  2011  and  in  the  said  Writ  

Petition,  the  High  Court  stayed  the  operation  of  the

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Notification for UG NEET Entrance Examination in so far  

as it related to the State of Tamil Nadu, and the stay  

continues to be in force.  Mr. Rao urged that in respect  

of Tamil Nadu there are many constitutional issues, as  

Tamil Nadu had abolished the Common Entrance Test based  

on the Tamil Nadu Admission in Professional Educational  

Institutions Act, 2006, which was given effect to after  

receiving the President's assent under Article 254(2) of  

the Constitution.   

86. Mr. Rao submitted that the introduction of NEET by  

virtue of the amended Regulations would run counter to  

the policy of the State Government which has enacted the  

aforesaid Act by abolishing the practice of holding an  

All India Entrance Test for admission to the professional  

courses  in  the  State.   Mr.  Rao  submitted  that  the  

decision regarding admission to the Post-graduate Medical  

and Dental Examinations would be the same as that for  

admission in Under-graduate courses.

87. Mr. Rao contended that the MCI had no jurisdiction

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to issue the impugned Notifications as the Council lacks  

the  competence  to  amend  the  State  Act  which  had  been  

enacted in 2006 and the validity whereof has been upheld  

by the High Court.  Mr. Rao repeated and reiterated the  

submissions earlier made with regard to the vires of the  

impugned Regulations and prayed for proper directions to  

be issued to allow the State of Tamil Nadu to continue  

its existing system of admission to both Under-graduate  

and Post-graduate  courses.    

88. Learned  senior  counsel,  Mr.  R.  Venkataramani,  

appearing for the Government of Puducherry, in T.C. No.  

17 of 2013, adopted the submissions made by Mr. Salve,  

Mr.  Parasaran  and  Dr.  Dhawan.   Mr.  Venkataramani  

submitted that the Notifications, whereby the impugned  

Regulations were sought to be introduced by the Medical  

Council of India, were beyond the scope of the powers  

conferred under Section 33 of the 1956 Act, rendering  

them ultra vires and invalid. Mr. Venkataramani submitted  

that the failure of the MCI to consult the Government of

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Puducherry, as was required under Sections 19A and 20 of  

the  1956  Act,  before  amending  the  Regulations  and  

notifying  the  same,  rendered  the  same  invalid.   Mr.  

Venkataramani also reiterated the submission made earlier  

that there are different streams of education prevailing  

in  different  States,  having  different  syllabi,  

curriculum, Board of Examinations and awarding of marks  

and  it  would  be  unreasonable  to  conduct  a  single  

examination by taking recourse to a particular stream of  

education  which  would  have  the  effect  of  depriving  

effective  participation  of  other  students  educated  in  

different streams.   

89. Mr.  Venkataramani  submitted  that  this  Court  had  

consistently held that unaided educational institutions  

are free to devise their own admission procedures and  

that the impugned Regulations were against social justice  

and would impinge on the rights of unaided educational  

institutions  as  well  as  the  institutions  enjoying  the  

protection of Article 30 of the Constitution in the Union

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Territory of Puducherry.    

90. Appearing  for  the  Karnataka  Private  Medical  and  

Dental Colleges' Association consisting of Minority and  

Non-Minority  private  unaided  Medical  Colleges  and  

educational institutions in the State of Karnataka, Mr.  

K.K. Venugopal, learned Senior Advocate, submitted that  

the Association had filed several Writ Petitions before  

the Karnataka High Court challenging the validity of the  

Notifications dated 21.12.2010 and 5.2.2012, by which the  

Medical Council of India has attempted to foist a Common  

Entrance Test (NEET) on all medical institutions in the  

country, which have been transferred to this Court for  

consideration along with other similar matters where the  

issues were common.

91. Mr.  Venugopal  reiterated  that  the  imposition  of  

NEET was contrary to the decisions of this Court in the  

T.M.A. Pai Foundation case (supra) and in P.A. Inamdar's  

case (supra). Mr. Venugopal contended that the right of  

the Members of the Association to carry on the business

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and  vocation  of  imparting  medical  education  had  been  

upheld not only in the two aforesaid cases, but also in  

the Islamic Academy of Education case (supra) and in T.  

Varghese George Vs.  Kora K. George [(2012) 1 SCC 369],  

Society  for  Unaided  Private  Schools  of  Rajasthan case  

(supra) and Rajan Purohit's case  (supra).

Mr. Venugopal urged that the aforesaid right has  

been based on the fact that a non-minority professional  

college  has  the  same  fundamental  right  which  is  also  

possessed by a minority institution under Article 19(1)

(g) of the Constitution, but is subject to reasonable  

restrictions under Article 19(6) of the Constitution.

92. Mr. Venugopal also voiced the issues common to all  

these  cases  as  to  whether  it  would  be  open  to  the  

Government or the MCI, a creature of the Indian Medical  

Council Act, 1956, to regulate the admission of students  

to all medical colleges and institutions. Mr. Venugopal  

urged  that  since  the  question  had  been  troubling  the  

Courts in the country for a considerable period of time,

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a Bench of Eleven (11) Judges was constituted to settle  

the above issues and other connected issues and to put a  

quietus to the same. The said Bench heard a number of  

matters  in  which  the  issue  had  been  raised and  it  delivered  its  verdict  in  what  is  referred  to  as  the  

T.M.A.  Pai  Foundation case  (supra),  answering  all  the  

questions raised.  Certain common issues contained in the  

judgment  came  up  for  consideration  later  and  were  

subsequently referred to a Bench of Seven Judges in P.A.  

Inamdar's case (supra) where the issue was finally put to  

rest.

93. Mr. Venugopal firmly urged that in dealing with the  

issues raised in these matters, none of the decisions  

rendered by this Court in the past  were required to be  

re-opened and the said issues will have to be considered  

and  decided  by  this  Court  by  merely  testing  their  

validity against the ratio of the earlier judgments, and,  

in particular, the decision in the T.M.A. Pai Foundation  

case (supra).  

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94. Mr. Venugopal's next submission was with regard to  

the provisions of the Karnataka Professional Educational  

Institutions  (Regulation  of  Admission  and  Fixation  of  

Fee) (Special Provisions) Act, 2011, hereinafter referred  

to as the "Karnataka Act of 2011",  which  provides  

for a consensual arrangement between the State Government  

and the Petitioner Association for filling up the seats  

in the unaided medical colleges being taken over by the  

State Government to the extent agreed upon between the  

parties.  The said Act also regulates the fees to be  

charged  in  these  private  institutions.  Mr.  Venugopal  

urged that the said Act still holds the field, since its  

validity  has  not  been  challenged.  As  a  result,  the  

impugned Regulation, now made by the Medical Council of  

India,  purportedly  under  Section  33  of  the  1956  Act,  

cannot  prevail  over  the  State  law.  Mr.  Venugopal  

submitted that the impugned Regulations are, therefore,  

of no effect in the State of Karnataka.

95. Mr. Venugopal also urged that having regard to the

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decision of this Court in the T.M.A. Pai Foundation case  

(supra) and the other decisions referred to hereinabove,  

the  impugned  Notifications  imposing  NEET  as  a  special  

vehicle for admission into medical colleges denuding the  

State  and  the  private  medical  institutions  from  

regulating their own procedure, must be held to be ultra  

vires Section 33 of the 1956 Act.

96.  Mr.  Venugopal  reiterated  the  submissions  made  on  

behalf  of  the  other  Petitioners  and  concluded  on  the  

observations made in paragraph 3 of the decision of this  

Court in State of Karnataka Vs. Dr. T.M.A. Pai Foundation  

& Ors. [(2003) 6 SCC 790], which made it clear that all  

statutory enactments, orders, schemes, regulations would  

have to be brought in conformity with the decision of the  

Constitution  Bench  in  the  T.M.A.  Pai  Foundation case  

(supra), decided on 31.10.2002.  Mr. Venugopal submitted  

that it, therefore, follows that the Regulations of 2000,  

2010 and 2012, to the extent that they are inconsistent  

with  the  decision  in  the   T.M.A.  Pai  Foundation case

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(supra), would be void and would have to be struck down.  

97. Mr. G.S. Kannur, learned Advocate, who appeared in  

support of the application for intervention, being I.A.  

No.3,  in  Transferred  Case  No.3  of  2013,  repeated  the  

submissions made by Mr. K. Parasaran, Dr. Dhawan and Mr.  

L. Nageshwar Rao, that the existence of various Boards in  

a  particular  State  is  bound  to  cause  inequality   and  

discrimination if the Common Entrance Test was introduced  

as  the  only  criteria  for  admission  into  any  medical  

college or institution in the country.

  98. Appearing for the Christian Medical College Ludhiana  

Society and the medical institutions being run by it, Mr.  

V.  Giri,  learned  Senior  Advocate,  reiterated  the  

submissions made by Mr. Harish Salve, on behalf of the  

Christian Medical College Vellore Association, but added  

a new dimension to the submissions made by submitting  

that  the  impugned  Regulations  had  been  issued  by  the  

Board of Governors, which had been in office pursuant to

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the supersession of the Medical Council, under Section 3A  

of the 1956 Act.  Mr. Giri submitted that the Board of  

Governors, which was only an  ad hoc body brought into  

existence  to  exercise  the  powers  and  perform  the  

functions  of  the  Council  under  the  Act  pending  its  

reconstitution, was not competent as an Ad hoc body to  

exercise the delegated legislative power under Section 33  

of the said Act and to discharge the  functions of the  

Medical Council, as contemplated under Section 3 of the  

1956 Act.  

99.  Mr. Giri urged that though Section 33 of the 1956  

Act confers power on the Medical Council of India to make  

Regulations generally for carrying out the purposes of  

the Act, it also enumerates the different functions of  

the Council and its powers and duties which are referable  

to the substantial provisions of the Act itself.  Learned  

counsel  pointed  out  that  clause  (l)  deals  with  the  

conduct  of  professional  examinations,  qualification  of  

examiners  and  conditions  of  admission  to  such

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examinations. Mr. Giri urged that Sections 16 to 18 of  

the above Act deals with the substantive power available  

to  the  Medical  Council  of  India  to  require  of  every  

University or Medical Institution information as to the  

courses of study and examinations and if necessary, to  

take  steps  for  inspecting  the  same.  Accordingly,  the  

Regulation-making power contemplated under Section 33 of  

the 1956 Act is referable to the substantive functions to  

be discharged by the Council under Sections 16 to 18 of  

the Act.  Mr. Giri contended that no provision in the Act  

contemplates that the Council may actually conduct the  

examinations.   Relying  on  the  views  expressed  in  the  

T.M.A. Pai Foundation case  (supra), Mr. Giri urged that  

the impugned Regulations were in direct violation of the  

rights guaranteed to a minority educational institutions  

under Article 19(1)(g) read with Articles 25, 26, 29(1)  

and 30 of the Constitution.   

100.   Mr.  Giri  submitted  that  the  Petitioner  is  a  

minority educational institution admitting students from

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the minority community in a fair, transparent and non-

exploitative manner, based on inter se merit, and cannot  

be subjected to the NEET for the purposes of admission to  

the  Under-graduate  MBBS  and  Post-graduate  degrees  in  

medicine. Reemphasising Mr. Salve's submissions, Mr. Giri  

submitted that the activity of running medical, allied  

health sciences and nursing courses, in order to ensure  

constant supply of doctors and other para-medical staff  

to  the  hospitals  and  other  facilities  engaged  in  the  

healing of the sick, are acts done in furtherance of the  

Petitioner's religious faith, which stand protected under  

Articles 25, 26 and 30 of the Constitution.   

101.  Mr. Giri submitted that the Government of Punjab,  

in its Department of Medical Education and Research, vide  

its Notification No. 5/7/07.3HBITI/2457 dated 21.05.2007,  

for admission to MBBS, BDS, BAMS and BHMS courses and  

vide  Notification  No.  5/8/2007-3HB3/1334  dated  

21.03.2007,  for  admission  in  Post-graduate  Degree/  

Diploma  courses  in  the  State  of  Punjab,  excluded  the

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Christian Medical College and Christian Dental College,  

Ludhiana, from the admission process conducted by Baba  

Farid University of Health Sciences, Faridkot, on behalf  

of the State Government for various Under-graduate and  

Post-graduate Medical Degree courses. Mr. Giri submitted  

that  the  impugned  Regulations,  being  ultra  vires the  

provisions  of  Articles  19(1)(g)  and  Articles  25,  26,  

29(1) and 30 of the Constitution, having been promulgated  

by an ad hoc body, were liable to be struck down.

102.  Mr.  K.  Radhakrishnan,  learned  Senior  Advocate,  

appeared  for  the  Annoor  Dental  College  and  Hospital,  

situated in the State of Kerala, adopted the submissions  

made by the other counsel and urged that the submissions  

advanced, as far as medical colleges and institutions are  

concerned, apply equally to dental colleges, which are  

under the authority of the Dental Council of India and is  

governed  by  the  Dentists  Act,  1948.  Mr.  Radhakrishnan  

submitted that the impugned Regulations were also  ultra  

vires the Dentists Act, 1948, Section 20 whereof empowers

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the Dental Council of India to prescribe conditions for  

admission to the courses for training of dentists and  

dental  hygienists,  but  does  not  authorize  the  Dental  

Council of India or any agency appointed by it to conduct  

admission tests for selection of students for the BDS and  

MDS  courses.   Mr.  Radhakrishnan  also  urged  that  the  

impugned  Regulations  which  attempted  to  enforce  NEET,  

were  ultra  vires the  provisions  of  the  Dentists  Act,  

1948, as also the relevant provisions of the Constitution  

and are, therefore, liable to be struck down.   

103. Transferred Case No.8 of 2013 which arises out of  

Writ Petition No.5939 (M/S) of 2012, was filed by the  

U.P.  Unaided  Medical  Colleges  Welfare  Association  and  

Others.  Appearing for the said Association, Mr. Guru  

Krishnakumar, learned Senior Advocate, while adopting the  

submissions already made, reiterated that the functional  

autonomy of institutes is an integral right under Article  

19(1)(g) of the Constitution, as clearly set out in the  

decision  rendered  in  the  T.M.A.  Pai  Foundation case

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(supra).   Learned  Senior  counsel  submitted  that  the  

fundamental  right  guaranteed  under  Article  19(1)(g)  

includes the right to admit students in the privately run  

professional  colleges,  including  medical,  dental  and  

engineering  colleges,  and  viewed  from  any  angle,  the  

impugned Regulations were impracticable, besides causing  

violence  to  Article  19(1)(g)  of  the  Constitution.  Mr.  

Guru Krishnakumar submitted that the impugned Regulations  

and the Notifications promulgating the same, were liable  

to be struck down.

104. Mr. C.S.N. Mohan Rao, learned Advocate, who appeared  

for the Writ Petitioner, Vigyan Bharti Charitable Trust  

in Writ Petition (C) No.15 of 2013, submitted that the  

Petitioner was a registered charitable trust running two  

medical colleges and a dental college in the State of  

Odisha. The various submissions made by Mr. Rao were a  

repetition of the submissions already made by Mr. Harish  

Salve and others.  Mr. Rao, however, referred to a Two-

Judge Bench decision of this Court in  Dr. Dinesh Kumar

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Vs.  Motilal  Nehru  Medical  Colleges,  Allahabad  &  Ors.  

[(1985)  3  SCC  727],  wherein,  while  considering  the  

question of admission to medical colleges and the All  

India Entrance Examination, it was, inter alia, held that  

it should be left to the different States to either adopt  

or reject the National Eligibility Entrance Test proposed  

to be conducted by the Medical Council of India. Mr. Rao  

submitted that as stated by Justice V. Krishna Iyer in  

the case of  Jagdish Sharan & Ors. Vs.  Union of India &  

Ors.  [(1980)  2  SCC  768],  merit  cannot  be  measured  in  

terms of marks alone, but human sympathies are equally  

important.  The heart is as much a factor as the head in  

assessing the social value of a member of the medical  

profession.       

105.   In Writ Petition (Civil) No.535 of 2012, Saveetha  

Institute  of  Medical  and  Technical  Sciences,  a  Deemed  

University,  declared  as  such  under  Section  3  of  the  

University Grants Commission Act, 1956, has questioned  

the impugned Notifications and the amended Clauses of the

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MCI Regulations on the same grounds as in the earlier  

cases.   Mr. Jayanth Muth Raj, learned Advocate appearing  

for  the  Petitioner,  repeated  and  reiterated  the  

submissions made earlier in regard to the law as laid  

down in the  T.M.A. Pai Foundation case (supra) and in  

P.A. Inamdar's case (supra) and urged that the impugned  

Notifications  had  been  issued  in  violation  of  the  

decisions rendered in the said two cases and in other  

subsequent cases indicating that private institutions had  

the right to evaluate their admission procedure based  on  

principles  of  fairness,  transparency  and  non-

exploitation.    Mr.  Muth  Raj  submitted  that  in  the  

absence of any consensual arrangement in the case of the  

Petitioner, the MCI or the Dental Council of India could  

not  compel  the  Petitioner  to  accept  the  National  

Eligibility-cum-Entrance  Test  on  the  basis  of  the  

impugned Regulations.  Learned counsel submitted that to  

that  extent,  the  impugned  amended  Regulations  and  the  

Notifications issued to enforce the same were ultra vires

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Articles 14, 19(1)(g) and 26 of the Constitution and were  

liable to be struck down.  

106.  Writ  Petition  (Civil)  No.495  of  2012  and  

Transfered Case No.108 of 2012 involve common questions  

regarding the conducting of NEET in English and Hindi in  

the State of Gujarat, where the medium of instructions  

under  the  Gujarat  Board  of  Secondary  Education  is  

Gujarati. The submissions made both on the behalf of the  

Petitioners and the State of Gujarat were ad idem to the  

extent that Entry 66 of List I restricts the legislative  

powers of the Central Government to "co-ordination and  

determination of standards of education".  Thus, as long  

as the Common Entrance Examination held by the State or  

the other private institutions did not impinge upon the  

standards laid down by Parliament, it is the State which  

can, in terms of Entry 25 of List III, prescribe such a  

Common  Entrance  Test  in  the  absence  of  any  Central  

Legislation relatable to Entry 25 of List III. Mr. K.K.  

Trivedi, learned Advocate, appearing for the Petitioners

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submitted that the impugned Regulations and Notifications  

were,  ultra  vires Section  33  of  the  1956  Act,  since  

prescribing  a  Common  Entrance  Test  is  not  one  of  the  

stated purposes of the Act and were, therefore, liable to  

be struck down.   

107.   Appearing for the Medical Council of India, Mr.  

Nidhesh Gupta, learned Senior Advocate, submitted that  

the Medical Council of India Act, 1956, is traceable to  

Entry 66 of List I, as was held in  MCI Vs.  State of  

Karnataka [(1998) 6 SCC 131].  In paragraph 24 of the  

said  decision  it  was  categorically  indicated  that  the  

Indian Medical Council Act being relatable to Entry 66 of  

List I, prevails over any State enactment to the extent  

the State enactment is repugnant to the provisions of the  

Act, even though the State Acts may be relatable to Entry  

25 or 26 of the Concurrent List.   

108.   Mr.  Gupta  submitted  that  Entry  66  in  List  I  

empowers  the  Central  Government  to  enact  laws  for

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coordination  and  determination  of  standards  in  

institutions  for  higher  education  or  research  and  

scientific  and  technical  institutions.  Learned  counsel  

also urged that Section 19-A (1) of the Indian Medical  

Council  Act,  1956,  provides  that  the  Council  may  

prescribe  the  minimum  standards  of  medical  education  

required for granting recognised medical qualifications  

(other  than  postgraduate  medical  qualifications)  by  

universities or medical institutions in India.  Mr. Gupta  

submitted  that  Section  20  relating  to  post-graduate  

medical education could also prescribe similar standards  

of  Postgraduate  Medical  Education  for  the  guidance  of  

Universities.  Mr. Gupta submitted that Section 33 of the  

1956 Act, empowers the Medical Council of India, with the  

previous  approval  of  the  Central  Government  to  make  

Regulations,  and  provides  that  the  Council  may  make  

Regulations generally to carry out the purposes of the  

Act, and, without prejudice to the generality of this  

power, such Regulations may provide for "any other matter

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for  which  under  the  Act  provision  may  be  made  by  Regulations”.  Mr. Gupta urged that it is the accepted  position that standards of education are to be determined  

by  the  MCI.  The  questions  which  have  been  posed  on  

behalf  of  the  Petitioners  in  these  various  matters,  

challenging the vires of the Regulations, are whether the  

power of determination of standards of education includes  

the power to regulate the admission process and determine  

the admission criteria, and whether the determination of  

standards of education also include the power to conduct  

the examinations.

109.   Responding  to  the  two  questions,  Mr.  Gupta  

submitted that once the 1997 Regulations were accepted by  

the various Medical Colleges and Institutions as being in  

accordance with law and the powers vested under Entry 66  

of List I, the first issue stands conceded, since the  

1997 Regulations prescribing the eligibility criteria for  

admission in medical courses had been accepted and acted  

upon  by  the  medical  institutions.  In  addition  to  the

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above, Mr. Gupta contended that Section 33(l) of the 1956  

Act vested the MCI with powers to frame regulations to  

provide  for  the  conduct  of  professional  examinations,  

qualifications  of  examiners  and  the  conditions  of  

admission to such examinations. Mr. Gupta submitted that,  

under the said provision, it can be said that the MCI was  

within its rights to conduct the NEET and stipulate the  

qualifications  of  examiners  and  the  conditions  of  

admission to such examinations.  

110. Mr. Gupta submitted that it would be incorrect to  

say that standards of education can have no direct impact  

on norms of admission.   Learned senior counsel pointed  

out  that  in  paragraph  36  of  the  judgment  in  Preeti  

Srivastava's case (supra), it had been indicated that the  

standards of education are impacted by the caliber of  

students admitted to the institution and that the process  

of selection and the criteria for selection of candidates  

has an impact on the standards of medical education. Mr.  

Gupta submitted that the views expressed by this Court in

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the decisions rendered in  Nivedita Jain's case (supra)  

and that of  Ajay Kumar Singh's case (supra), which had  

taken  a  contrary  view,  were  overruled   in  Preeti  

Srivastava's case (supra).  Mr. Gupta also relied on the  

decision  of  this  Court  in  Bharati  Vidyapeeth  (Deemed  

University)  and  Ors. Vs.  State  of  Maharashtra  &  Anr.  

[(2004) 11 SCC 755], wherein while following the decision  

in  Preeti Srivastava's case (supra), it was reiterated  

that prescribing standards would include the process of  

admission.  Mr. Gupta submitted that the said decision  

had, thereafter, been followed in Prof. Yashpal Vs. State  

of Chhattisgarh [(2005) 5 SCC 420];  State of M.P. Vs.  

Gopal D. Teerthani [(2003) 7 SCC 83],  Harish Verma Vs.  

Rajesh  Srivastava [(2003)  8  SCC  69]  and  in  Medical  

Council  of  India Vs.  Rama  Medical  College  Hospital  &  

Research  Centre [(2012)  8  SCC  80].   Learned  senior  

counsel  urged  that  the  expression  “standard”  used  in  

Entry 66 of List I has been given a very wide meaning by  

this Court in Gujarat University, Ahemadabad Vs. Krishna

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Ranganath  Mudholkar [(1963)  Supp.  1  SCR  112]  and  

accordingly  anything  concerned  with  standards  of  

education would be included within Entry 66 of List I and  

would be deemed to be excluded from other Lists.  Mr.  

Gupta also placed reliance on MCI Vs. State of Karnataka  

[1998  (6)  SCC  131],  wherein  it  was  held  that  it  was  

settled law that while considering the amplitude of the  

entries in Schedule VII of the Constitution, the widest  

amplitude is to be given to the language of such Entries.  

Mr. Gupta urged that without prejudice to the contention  

that Entry 66 of List I directly permits the admission  

process and the examination itself being regulated and/or  

conducted  by  the  MCI,  even  if  the  Entries  did  not  

directly so permit, the MCI was entitled to regulate the  

said functions since even matters which are not directly  

covered by the Entries, but are ancillary thereto, can be  

regulated. Mr. Gupta submitted that in Krishna Ranganath  

Mudholkar's  case  (supra),  it  was  held  that  power  to  

legislate on a subject should normally be held to extend

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to all ancillary or subsidiary matters, which can fairly  

and  reasonably  be  said  to  be  comprehended  in  that  

subject.  Reference was also made to the decisions of  

this Court in Harakchand Ratanchand Banthia Vs. Union of  

India [(1969) 2 SCC 166];  ITC Vs.  Agricultural Produce  

Market Committee [(2002) 9 SCC 232]; and  Banarasi Dass  

Vs.  WTO [1965 (2) SCR 355], wherein the same principle  

has  been  reiterated.   Mr.  Gupta  submitted  that  

Regulations validly made become a part of the Statute  

itself, as was indicated in  State of Punjab Vs.  Devans  

Modern  Breweries  Ltd. [(2004)  11  SCC  26];  Annamalai  

University Vs. Information & Tourism Department [(2009) 4  

SCC 590] U.P. Power Corporation Vs. NTPC Ltd. [(2009) 6  

SCC 235] and the  St. Johns Teachers Training Institute  

case  (supra).   According  to  Mr.  Gupta,  the  NEET  

Regulations having been validly made and the requisite  

legislation being available in  Sections 19A, 20 and 23  

of  the  Indian  Medical  Council  Act,  1956,  the  NEET  

Regulations must be deemed to be part of the Act itself.

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111.  Regarding the MCI's power to conduct the NEET, Mr.  

Gupta  urged  that  once  it  had  been  held  in  Preeti  

Srivastava's case (supra) that the standard of education  

is impacted by the process of selection, the power to  

determine the said process of selection is implicit.  In  

fact,  Mr.  Gupta  submitted  that  the  aforesaid  question  

stands  concluded  by  the  judgment  of  this  Court  in  

Veterinary  Council  of  India Vs.  Indian  Council  of  

Agricultural Research [(2000) 1 SCC 750], wherein,  while  

considering the provisions of the Veterinary Council of  

India Act which were materially the same as those of the  

Indian Medical Council Act, it was held relying on the  

judgment  in  Preeti  Srivastava's  case  (supra)  that  the  

Veterinary Council of India was competent to and had the  

requisite  powers  to  hold  the  All  India  Entrance  

Examination.

112.   Mr.  Gupta  urged  that  this  Court  had  repeatedly  

emphasised how profiteering and capitation fee and other

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malpractices  have  entered  the  field  of  medical  

admissions,  which  adversely  affect  the  standards  of  

education in the country. Such malpractices strike at the  

core of the admission process and if allowed to continue,  

the admission process will be reduced to a farce.  It was  

to  put  an  end  to  such  malpractices  that  the  MCI  

introduced NEET and was within its powers to do so.    

113.  On the necessity of furnishing draft Regulations to  

the State Governments, as stipulated under Section 19A(2)  

and for Committees under Section 20, Mr. Gupta urged that  

the  same  was  merely  directory  and  not  mandatory.  

Referring to the decision of this Court in State of U.P.  

Vs.  Manbodhan  Lal  Srivastava [1958  SCR  533],  learned  

counsel submitted that this Court while considering the  

provisions of Article 320(3) of the Constitution, which  

provides for consultation with the Union Public Service  

Commission or the State Public Service Commission, held  

that the said requirement in the Constitution was merely  

directory and not mandatory.  Drawing a parallel to the

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facts of the said case with the facts of the present set  

of cases, Mr. Gupta urged that the provisions of Section  

19A(2) must be held to be directory and not mandatory and  

its non-compliance could not adversely affect the amended  

Regulations  and  the  Notifications  issued  in  pursuance  

thereof.  

Mr.  Gupta  submitted  that  before  amending  the  

Regulations,  detailed  interaction  had  been  undertaken  

with the State Governments at various stages.  Learned  

counsel  submitted  that  as  far  back  as  on  14.9.2009,  

5.2.2010  and  4.8.2010,  letters  had  been  written  to  

various State Governments and the responses received were  

considered. There were joint meetings between the various  

State representatives and the other concerned parties and  

the concerns of most of the State Governments were fully  

addressed.

114.   On the question of federalism and the powers of  

the  State  under  Article  254  of  the  Constitution,  Mr.

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Gupta contended that since the MCI derived its authority  

from  Entry  66  of  List  I,  it  is  a  subject  which  is  

exclusively within the domain of the Union.  Mr. Gupta  

submitted that all the arguments advanced on behalf of  

the Petitioners were on the erroneous assumption that the  

Regulations had been made under Entry 25 of List III.  

Mr.  Gupta  pointed  out  that  in  paragraph  52  of  the  

judgment in Preeti Srivastava's case (supra), this Court  

had held that the impugned Regulations had been framed  

under Entry 66, List I and that the Regulations framed by  

the MCI are binding and the States cannot in exercise of  

powers  under  Entry  25  of  List  III  make  Rules  and  

Regulations  which  are  in  conflict  with  or  adversely  

impinge upon the Regulations framed by the MCI for Post-

graduate medical education.  Mr. Gupta urged that since  

the standards laid down by the MCI are in exercise of  

powers conferred by Entry 66 of List I, the same would  

prevail over all State laws on the same subject.  

115.  Mr.  Gupta  also  urged  that  the  ratio  of  Lavu

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Narendranath's  case  (supra)  had  been  misunderstood  on  

behalf of the Petitioners and the arguments raised on  

behalf of Yenepoya University was based on the ratio that  

Entry 66 of List I is not relatable to a screening test  

prescribed  by  the  Government  or  by  a  University  for  

selection of students from out of a large number applying  

for admission to a particular course of study.  Mr. Gupta  

pointed  out  that  the  ratio  of  the  decision  in  Preeti  

Srivastava's case (supra) and in Lavu Narendranath's case  

(supra) show that the Government which ran the colleges  

had the right to make a selection out of a large number  

of candidates and for this purpose they could prescribe a  

test of their own which was not contrary to any law.  It  

was urged that in the said case, there was no Central  

legislation occupying the field.  Mr. Gupta urged that  

NEET is not a mere screening test, but an eligibility  

test  which  forms  the  basis  of  selection.   Mr.  Gupta  

submitted that any test which might be prescribed by a  

State Government would be against the law in the present

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case, being in the teeth of the NEET Regulations.  

116.  With regard to the submissions made on behalf of  

the  minority  institutions  enjoying  the  protection  of  

Article 30, Mr. Gupta contended that reliance placed on  

behalf of CMC, Vellore, on the judgment in the Ahmedabad  

St. Xavier's College Society Vs. State of Gujarat [(1974)  

1 SCC 717], was entirely misplaced, and, in fact, the  

said judgment supports a test such as NEET.  Mr. Gupta  

submitted that on a proper analysis of the said judgment  

and in particular the judgment delivered by Chief Justice  

Ray, (as His Lordship then was), it would be evident that  

even  in  the  said  judgment  the  right  of  religious  and  

linguistic  minorities  to  establish  and  administer  

educational institutions of the choice of the minorities  

had  been  duly  recognised.   Chief  Justice  Ray  also  

observed that if the scope of Article 30(1) is made an  

extension of the right under Article 29(1) as a right to  

establish  and  administer  educational  institutions  for  

giving religious instruction or for imparting education

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in their religious teachings or tenets, the fundamental  

right  of  minorities  to  establish  and  administer  

educational institutions of their choice would be taken  

away.  It was also observed in the judgment that every  

section of the public, the majority as well as minority,  

has  rights  in  respect  of  religion  as  contemplated  in  

Articles 25 and 26 of the Constitution.   Mr. Gupta urged  

that  the  whole  object  of  conferring  the  right  on  

minorities under Article 30 is to ensure that there would  

be equality between the majority and the minority. It was  

urged that it is for the aforesaid reason that whenever  

the majority community conferred upon itself a special  

power to overrule or interfere with the administration  

and management of the minority institutions, the Supreme  

Court struck down the said power.  Mr. Gupta submitted  

that whenever an attempt was made to interfere with the  

rights guaranteed to religious and linguistic minorities,  

as in the  St. Xavier's case (supra),  the same being  

arbitrary and unreasonable, was struck down.  Reliance

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was  also  placed  on  the  decision  in  the  case  of  Rev.  

Father W. Proost, and in the case of  Rt. Rev. Bishop  

S.K. Patro, where the impugned order of the Secretary to  

the Government dated 22nd May, 1967, set aside the order  

passed  by  the  President  of  the  Board  of  Secondary  

Education.   Mr.  Gupta  urged  that  in  the  very  initial  

stage of judicial consideration in these matters,  in  

State of Kerala Vs. Very Rev. Mother Provincial [(1970) 2  

SCC 417], the impugned provisions required nominees of  

the University and the Government to be included in the  

Governing Body.  The same being a direct infringement on  

the rights of the minorities to establish and administer  

institutions of their choice, the impugned provision was  

struck down.  

117.  Mr. Gupta submitted that in each of the aforesaid  

cases, an attempt was made by the majority to take over  

the  management  and  to  impose  its  substantive  views.  

Learned counsel submitted that NEET does nothing of the  

sort,  since  it  did  not  infringe  any  of  the  rights

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guaranteed either under Article 19(1)(g) or Articles 25,  

26, 29 and 30 of the Constitution.  Mr. Gupta urged that  

the various questions raised on behalf of the Petitioners  

herein have been fully answered in  P.A. Inamdar's case  

(supra).  They also meet the tests prescribed in the St.  

Xavier's  case  (supra)  as  well.  Mr.  Gupta  urged  that  

Justice Khanna in paragraph 105 of the judgment observed  

that Regulations which are calculated to safeguard the  

interests of teachers would result in security of tenure  

and  would  attract  competent  persons  for  the  posts  of  

teachers and are, therefore, in the interest of minority  

educational institutions, and would not violate Article  

30(1) of the Constitution.  Mr. Gupta urged that by the  

same reasoning, Regulations which are in the interest of  

the  students  and  will  attract  the  most  meritorious  

students, are necessarily in the interest of the minority  

institutions and do not, therefore, violate their rights  

under Article 30(1) of the Constitution.     

118. Mr. Gupta submitted that in the  St. Xavier's case

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(supra),  Justice  Khanna  had  indicated  in  his  separate  

judgment the dual tests of reasonableness and of making  

the institution an effective vehicle of education for the  

minority  community  and  others  who  resort  to  it.   Mr.  

Gupta  submitted  that  NEET  meets  the  test  of  

reasonableness  and  fully  assists  in  making  the  

institution an effective vehicle of education, since it  

ensures admission for the most meritorious students and  

also negates any possibility of admissions being made for  

reasons other than merit within each category.  Mr. Gupta  

submitted that, in fact, in paragraph 92 of the judgment,  

Justice Khanna had observed that "a regulation which is  

designed to prevent maladministration of an educational  

institution  cannot  be  said  to  offend  Clause  (1)  of  

Article 30".    Mr. Gupta re-emphasized that NEET was not  

in  any  way  against  the  rights  vested  in  educational  

institutions, being run by the minorities, but it was in  

the  interest  of  such  minorities  to  have  their  most  

meritorious students in the best institutes.  

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119.  Dealing  with  the  various  tests  referred  to  on  

behalf of the Petitioners in the different cases, Mr.  

Gupta  submitted  that  the  ratio  in  the  T.M.A.  Pai  

Foundation case  (supra)  also  supports  the  NEET  

Regulations.   Mr.  Gupta  contended  that  the  right  of  

minority  institutions  to  admit  students  was  not  being  

denied, inasmuch as, the concerned institutes could admit  

students of their own community, but from the list of  

successful candidates who appear for the NEET.  Mr. Gupta  

submitted  that  in  the  aforesaid  judgment  it  was  also  

observed that merit is usually determined by a common  

entrance test conducted by the institution or in case of  

professional colleges, by government agencies.  Mr. Gupta  

submitted  that  it  had  also  been  emphasized  that  

Regulations  in  national  interest  are  to  apply  to  all  

educational institutions, whether run by a minority or  

non-minorities and that an exception to the right under  

Article  30  is  the  power  of  the  State  to  regulate  

education, educational standards and allied matters. Mr.

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Gupta submitted that in the  T.M.A. Pai Foundation case  

(supra), it had been indicated that regulatory measures  

for  ensuring  educational  standards  and  maintaining  

excellence  thereof  are  no  anathema  to  the  protection  

conferred by Article 30(1).

120.  Mr.  Gupta  submitted  that  the  admission  process  

followed by CMC, Vellore, failed to meet any of the tests  

relating  to  transparency  and  fairness  and  lack  of  

arbitrariness.  Mr. Gupta pointed out that, in the case  

of a candidate for admission in the Under-graduate or  

Post-graduate  courses  in  the  said  institution,  a  

candidate cannot be selected unless he is sponsored by  

the  Diocese  and  the  competition  is  limited  to  the  

particular  candidates,  who  had  been  sponsored  by  a  

particular  Diocese,  which  Mr.  Gupta  submitted  is  

violative of Article 14 of the Constitution and also the  

principles of merit.

Mr. Gupta urged that as far as the application of

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Articles  25  and  26  of  the  Constitution  in  matters  

relating  to  establishment  and  administration  of  

educational institutions is concerned, the same has to be  

read in relation to matters of religion and with respect  

to  religious  practices  which  form  an  essential  and  

integral  part  of  religion.   Learned  counsel  submitted  

that the rights protected under Articles 25 and 26 are  

available  to  individuals  and  not  to  organized  bodies,  

such as CMC, Vellore, or other minority run institutions,  

as had been held by this Court in  Sardar Vs.  State of  

Bombay [1962 Supp. (2) SCR 496], wherein it was observed  

that the right guaranteed by Article 25 is an individual  

right.  The said view was subsequently endorsed in  Sri  

Sri Sri Lakshmana Yatendrulu Vs. State of A.P. [(196) 8  

SCC 705].  Mr. Gupta submitted that, having regard to the  

above, the various associations and minorities, which had  

challenged the impugned Regulations, were not entitled to  

do so and their applications were liable to be dismissed.  

121.  Mr. Gupta submitted that the impugned Regulations

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would apply equally to "Deemed Universities", declared to  

be so under Section 3 of the University Grants Commission  

Act,  1956,  hereinafter  referred  to  as  the  "UGC  Act",  

since it cannot be argued that the Deemed University will  

not follow any rules at all.  Mr. Gupta pointed out that  

in the Bharati Vidyapeeth's case (supra), this Court had  

held  that  the  standards  prescribed  by  statutory  

authorities,  such  as  the  Medical  Council  of  India,  

governed by Entry 66 of List I of the Seventh Schedule to  

the Constitution, must be applied, particularly when the  

Deemed  Universities  seek  recognition  of  the  medical  

courses taught by them, under the provisions of the 1956  

Act.  Mr. Gupta submitted that the Deemed Universities  

cannot take the benefit of recognition under the 1956  

Act, but refuse to follow the norms prescribed therein.   

Mr. Gupta pointed out that it had inter alia been  

indicated  in  paragraph  24  of  the  affidavit  filed  on  

behalf of the Commission that the Commission was also of  

the view that all the constituent medical colleges of

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"Deemed Universities" may be asked to comply with the  

Notification  dated  21.12.2010,  issued  by  the  Medical  

Council  of  India,  in  view  of  Article  6.1  in  the  UGC  

(Institutions  Deemed  to  be  Universities)  Regulations,  

2010, which states that:

"Admission of students to all deemed to  be universities, public or private, shall  be made strictly on merit based on an All  India  examination  as  prescribed  by  the  Regulations and in consistence with the  national policy in this behalf, from time  to time."

122.  On the percentile system of grading, which had  

been touched upon by Dr. Dhawan, it was submitted that  

the said system of ranking/ grading was being followed  

internationally  in  many  of  the  premier  institutions  

around the globe.     

123.   Adverting  to  the  submissions  made  by  Mr.  L.  

Nageshwara Rao, on behalf of the States of Andhra Pradesh  

and  Tamil  Nadu,  regarding  the  enactment  of  the  A.P.  

Educational  Institutions  (Regulation  of  Admissions  and

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Prohibition of Capitation Fee) Act, 1983, on the basis of  

the Presidential Order dated 10th May, 1979, made under  

Article 371-D of the Constitution, Mr. Gupta submitted  

that neither the said Article nor the Presidential Order  

was  concerned  with  standards  of  education.  Mr.  Gupta  

urged that a reading of Sub-clause (1) of Article 371-D  

of the Constitution makes it clear that it confers powers  

on the President to make an Order with regard to the  

State of Andhra Pradesh "for equitable opportunities and  

facilities for the people belonging to different parts of  

the State".    Mr. Gupta urged that the State legislation  

providing  for  State  level  entrance  examination  is  not  

relatable  to  Article  371-D  and,  as  such,  the  State  

legislation had to yield to the Union legislation, which  

Mr. Gupta urged had been the consistent view taken in  

Govt. of A.P. Vs. Mohd. Ghouse Mohinuddin [(2001) 8 SCC  

416]; V. Jaganadha Rao Vs. State of A.P. [(2001) 10 SCC  

401]; and NTR University of Health Sciences Vs. G. Babu  

Rajendra Prasad [(2003) 5 SCC 350].

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124.   As to the weightage of marks being given up to a  

maximum of 30%, to government servants serving in remote  

areas, Mr. Gupta said that the same had been upheld by  

this Court in State of M.P. Vs. Gopal D. Tirthani [(2003)  

7 SCC 83].

125. Replying to the submissions made on behalf of  

some  of  the  other  Petitioners  and,  in  particular,  on  

behalf  of  the  Christian  Medical  College,  Ludhiana,  in  

Writ  Petition  No.  20  of  2012,  Mr.  Gupta  urged  that  

Section  3B  of  the  1956  Act  empowers  the  Board  of  

Governors  to  exercise  the  powers  and  discharge  the  

functions of the Council and, accordingly, even if the  

appointment of the members of the Board of Governors was  

ad hoc in nature, it made no difference to their working  

and discharging the functions of the Council.

126. Mr.  Gupta  urged  that  private  bodies  and  

religious and linguistic minorities have a fundamental  

right to establish and administer medical institutions or

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other institutions of their choice under Articles 19(1)

(g) and 30 of the Constitution, but such right was not  

unfettered and did not include the right to maladminister  

the respective institutions.  Learned counsel urged that  

in the name of protection under Articles 25, 26 and 30 of  

the Constitution, an institution run by a religious or  

linguistic minority did not have the right to lower the  

standards  of  education  set  by  the  Medical  Council  of  

India  or  to  recruit  staff,  who  were  not  properly  

qualified, or to deprive the students of the necessary  

infrastructure to run such courses.  Accordingly, the MCI  

was within its jurisdiction to lay down proper standards  

and to also conduct an All-India Entrance Examination to  

eliminate  any  possibility  of  malpractice.   Mr.  Gupta  

urged that the several Writ Petitions filed on behalf of  

both  States  and  private  individuals  and  religious  and  

linguistic  minorities  are,  therefore,  liable  to  be  

dismissed with appropriate costs.  

127.   Mr. Sidharth Luthra, learned Additional Solicitor

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General,  appearing  for  the  Union  of  India,  in  the  

Ministry  of  Health  and  Family  Welfare,  at  the  very  

outset, submitted that the Union of India fully supported  

the stand of the MCI. Mr. Luthra urged that the impugned  

Notifications amending the Regulations in regard to the  

introduction of NEET for both graduate medical education  

and post-graduate medical education had been validly made  

under powers conferred upon the MCI under Section 33 of  

the 1956 Act, upon obtaining the previous sanction of the  

Central Government, as required under the said Section.  

Mr. Luthra submitted that there was a definite rationale  

behind holding a single examination.  The learned ASG  

urged that the NEET Regulations had been framed by the  

MCI, after due deliberations with the Central Government  

and, broadly speaking, the logic behind enacting the said  

Regulations were to introduce uniformity of standards,  

merit  and  transparency  and  to  lessen  the  hardship  of  

aspiring students.  Mr. Luthra urged that the NEET and  

the amending Regulations, which had been impugned, were

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not ultra vires since the 1956 Act is relatable to Entry  

66  of  the  Union  List  and  prevails  over  any  State  

enactment, even though the State Acts may be relatable to  

Entry 25 or 26 of the Concurrent List, to the extent the  

provisions  of  the  State  Acts  were  repugnant  to  the  

Central legislation.  Mr. Luthra urged that Regulations  

framed  under  Section  33  of  the  1956  Act,  with  the  

previous  sanction  of  the  Central  Government,  have  

statutory status and the said Regulations were framed to  

carry out the purposes of the said Act.

   128.  Mr. Luthra repeated Mr. Gupta's submission that  

the rights of the minorities preserved under Article 30  

were not adversely affected or prejudiced in any way, as  

had been explained in P.A. Inamdar's case (supra).  The  

learned ASG submitted that NEET had been introduced in  

the national interest to ensure that meritorious students  

did  not  suffer  the  problem  of  appearing  in  multiple  

examinations  conducted  by  various  agencies  which  also  

resulted in different standards for admission, which had

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the effect of compromising merit.  Mr. Luthra urged that  

the earlier system of multiple examinations was neither  

in  the  national  interest  nor  in  the  interest  of  

maintaining the standards of medical education, nor did  

it serve the interest of poor/middle class students who  

had  to  buy  forms  of  several  examinations  and  travel  

across the country to appear in multiple examinations.  

It was urged that any Regulation framed in the national  

interest  must  necessarily  apply  to  all  educational  

institutions, whether run by the majority or the minority  

groups.  It was also urged that such a Regulation must  

necessarily be read into Article 30 of the Constitution.  

Mr. Luthra referred to the views expressed in that behalf  

in  Paragraph  107  of  the  judgment  in  the  T.M.A.  Pai  

Foundation case (supra). The learned ASG submitted that  

the amended Regulations do not restrict or in any manner  

take away the rights of the minority institutions under  

Articles 19(1)(g) and 30 of the Constitution to admit  

students from their community.

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129.  Mr. Luthra reiterated the submissions made by Mr.  

Gupta  that  the  right  conferred  on  the  religious  and  

linguistic  minorities  to  administer  educational  

institutions of their choice, is not an absolute right  

and may be regulated in certain special circumstances.

130. The  learned  ASG  also  urged  that  the  merit  

list to be published on the results of the NEET, will  

contain all the details of each candidate, including the  

State, category, minority status, caste and tribal status  

in front of his/her name and rank so that there would be  

no  hindrance  whatsoever  in  implementing  the  

constitutional  principles  of  reservation  and  minority  

rights and merit. Furthermore, the transparency in the  

process of admission would also be fully achieved.

131. On  the  question  of  different  mediums  of  

instruction in schools throughout the country, Mr. Luthra  

submitted  that  the  NEET  -  UG  would  be  conducted  in  

multiple  languages,  such  as  English,  Hindi,  Telegu,

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Assamese,  Gujarati,  Marathi,  Tamil  and  Bengali,  and  

hence,  the  submissions  made  that  NEET  was  not  being  

conducted in the regional languages, is misleading.

132. One other important aspect touched upon by  

Mr. Luthra is with regard to the syllabus for NEET, which  

would be based on the CBSE syllabus.  The learned ASG  

submitted that the syllabus for NEET had been prepared by  

the MCI, after obtaining feedback from different stake-

holders, including the National Board and State Boards,  

across  the  country.   Mr.  Luthra  submitted  that  the  

Regulations have been amended to implement the provisions  

of the Act so as to meet the difficulties, which had been  

raised by some of the States.  The learned ASG submitted  

that  the  NEET  Regulations  were  clearly  within  the  

competence and jurisdiction of the Medical Council in the  

discharge of its obligations to carry out the purposes of  

the Act, as had been enjoined in the different decisions  

of this Court and, in particular, in Preeti Srivastava's  

case (supra). The learned ASG urged that the objections

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which  had  been  sought  to  be  taken  on  behalf  of  the  

various  Petitioners,  including  the  State  Governments,  

with regard to the holding of the NEET examination, were  

wholly misconceived and were liable to be rejected.

133.  Various  issues  of  singular  importance,  some  of  

which  have  been  considered  earlier,  arise  out  of  the  

submissions  made  on  behalf  of  the  respective  parties  

questioning the vires of the amended regulations relating  

to  Under-graduate  and  Post-graduate  medical  education,  

namely,  

(i) The  validity  of  

the MCI Regulations and the DCI Regulations and the  

amendments effected therein with regard to Under-

graduate and Post-graduate courses of medicine in  

medical and dental colleges and institutions in the  

light  of  Section  19A(2)  of  the  Indian  Medical  

Council Act, 1956, and the corresponding provisions  

in the Dentists Act, 1948.

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(ii) The  jurisdiction  

and authority of the MCI and the DCI to conduct a  

single  National  Eligibility-cum-Entrance  Test  for  

admission to the M.B.B.S., B.D.S. and Post-graduate  

courses in both the disciplines.

(iii) The rights of the  

States  and  private  institutions  to  establish  and  

administer  educational  institutions  and  to  admit  

students to their M.B.B.S., B.D.S. and Post-graduate  

courses;

(iv) The impact of NEET  

on the rights guaranteed to religious and linguistic  

minorities under Article 30 of the Constitution.

(v) Do the impugned  

Regulations come within the ambit of Entry 66, List  

I, of the Seventh Schedule to the Constitution?;

(vi) The  effect  of  

Presidential orders made under Article 371D of the  

Constitution of India.  

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134.  Despite the various issues raised in this batch of  

cases, the central issue relates to the validity of the  

amended Regulations and the right of the MCI and the DCI  

thereunder  to  introduce  and  enforce  a  common  entrance  

test,  which  has  the  effect  of  denuding  the  State  and  

private  institutions,  both  aided  and  unaided,  some  

enjoying the protection of Article 30, of their powers to  

admit  students  in  the  M.B.B.S.,  B.D.S.  and  the  Post-

graduate  Courses  conducted  by  them.   There  is  little  

doubt that the impugned Notifications dated 21.12.2010  

and 31.5.2012, respectively, and the amended Regulations  

directly  affect  the  right  of  private  institutions  to  

admit students of their choice by conducting their own  

entrance examinations, as they have been doing all along.  

Attractive though it seems, the decision taken by the MCI  

and the DCI to hold a single National Eligibility-cum-

Entrance  Test  to  the  M.B.B.S.,  B.D.S.  and  the  Post-

graduate courses in medicine and dentistry, purportedly  

with  the  intention  of  maintaining  high  standards  in

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medical education, is fraught with difficulties, not the  

least of which is the competence of the MCI and the DCI  

to  frame  and  notify  such  Regulations.  The  ancillary  

issues which arise in regard to the main issue, relate to  

the rights guaranteed to citizens under Article 19(1)(g)  

and to religious and linguistic minorities under Article  

30  of  the  Constitution,  to  establish  and  administer  

educational institutions of their choice.

135.  Doubts have been raised regarding the competence  

of  the  MCI  and  the  DCI  to  amend  the  1997  and  2000  

Regulations,  or  the  2007  Regulation  and  to  issue  the  

impugned  Notifications  to  cover  all  the  medical  

institutions  in  the  country,  which  have  their  own  

procedures relating to admissions to the M.B.B.S., B.D.S.  

and Post-graduate Courses which passed the triple test  

indicated in  P.A. Inamdar's case (supra).  The validity  

of  the  MCI  Regulations  of  1997  and  2000  and  the  DCI  

Regulations of 2007 and the amendments effected therein  

has been questioned with reference to Sections 19A(2) and

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20 of the 1956 Act and Section 20 of the 1948 Act.  While  

empowering  the  MCI  and  the  DCI  to  prescribe  minimum  

standards  of  medical  education  required  for   granting  

recognised  medical  qualifications,  it  has  also  been  

stipulated that the copies of the draft Regulations and  

all subsequent amendments thereof are to be furnished by  

the Council to all the State Governments and the Council  

shall, before submitting the Regulations or any amendment  

thereof, as the case may be, to the Central Government  

for sanction, take into consideration the comments of any  

State Government received within three months from the  

furnishing of such copies.  The said provisions do not  

appear to have been complied with by the MCI or the DCI,  

which rendered the Regulations and the amendments thereto  

invalid.   On behalf of the MCI an attempt was made to  

justify the omission by urging that the directions were  

only directory and not mandatory.  In support of such a  

contention  reliance  was  placed  on  Manbodhan  Lal  

Srivastava's  case  (supra),  wherein  the  provisions  of

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Article  320(3)  of  the  Constitution  providing  for  

consultation with the Union Public Service Commission or  

the  State  Public  Service  Commission,  were  held  to  be  

directory and not mandatory.  A submission was also made  

that  before  the  Regulations  were  amended,  MCI  had  

interacted  with  the  State  Governments  and  letters  had  

also been exchanged in this regard and the responses were  

taken  into  account  by  the  Council  while  amending  the  

Regulations.   

136.  We are afraid that the said analogy would not be  

applicable to the facts of these cases.  The direction  

contained in Sub-section (2) of Section 19A of the 1956  

Act makes it a pre-condition for the Regulations and all  

subsequent  amendments  to  be  submitted  to  the  Central  

Government for sanction.  The Council is required to take  

into consideration the comments of any State Government  

within three months from the furnishing of copies of the  

draft Regulations and/or subsequent amendments thereto.  

There is nothing to show that the MCI ever sent the draft

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amended Regulations to the different State Governments  

for their views. The submission of the draft Regulations  

and all subsequent amendments thereto cannot be said to  

be  directory,  since  upon  furnishing  of  the  draft  

Regulations and all subsequent amendments thereto by the  

Council to all the State Governments, the Council has to  

take into consideration the comments, if any, received  

from  any  State  Government  in  respect  thereof,  before  

submitting  the  same  to  the  Central  Government  for  

sanction.

137.   The fact situation in Manbodhan Lal Srivastava's  

case (supra) was different from the fact situation in  

this batch of cases. Article 320(3) of the Constitution  

provides  for  consultation  by  the  Central  or  State  

Government with regard to the matters enumerated therein.  

In the instant case, it is not a case of consultation,  

but  a  case  of  inputs  being  provided  by  the  State  

Governments in regard to the Regulations to be framed by  

the MCI or the DCI. Realising the difficulty, Mr. Gupta

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had argued that since the 1997 and 2000 Regulations had  

been acted upon by the concerned parties, the same must  

be held to have been accepted and the validity thereof  

was no longer open to challenge.

138.   Mr.  Gupta's  aforesaid  submissions  cannot  be  

accepted,  inasmuch  as,  an  invalid  provision  cannot  be  

validated simply by acting on the basis thereof.   

139.   Mr. Gupta has also urged that the MCI derived its  

authority for framing the Regulations and/or effecting  

amendments thereto from Entry 66, List I, which is within  

the domain of the Central Government.  Accordingly, the  

same  would  have  primacy  over  all  State  laws  on  the  

subject.

140. Mr. Gupta's said submission finds support in Preeti  

Srivastava's case (supra), wherein it has been held that  

the Regulations framed by the MCI is binding upon the  

States having been framed under Entry 66, List I of the  

Seventh Schedule to the Constitution.  But, where does it

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take us as far as these cases are concerned which derive  

their rights and status under Articles 19(1)(g), 25, 26,  

29(1)  and  30  of  the  Constitution?  Can  the  rights  

guaranteed  to  individuals  and  also  religious  and  

linguistic minorities under the said provisions of the  

Constitution, be interfered with by legislation and that  

too by way of delegated legislation?   

141. The four impugned Notifications dated 21.12.2010 and  

31.5.2012 make it clear, in no uncertain terms, that all  

admissions to the M.B.B.S. and the B.D.S. courses and  

their respective Post-graduate courses, shall have to be  

made solely on the basis of the results of the respective  

NEET, thereby preventing the States and their authorities  

and  privately-run  institutions  from  conducting  any  

separate  examination  for  admitting  students  to  the  

courses  run  by  them.  Although,  Article  19(6)  of  the  

Constitution  recognizes  and  permits  reasonable  

restrictions on the right guaranteed under Article 19(1)

(g), the course of action adopted by the MCI and the DCI

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would  not,  in  our  view,  qualify  as  a  reasonable  

restriction, but would amount to interference with the  

rights  guaranteed  under  Article  19(1)(g)  and,  more  

particularly, Article 30, which is not subject to any  

restriction similar to Article 19(6) of the Constitution.  

Of  course,  over  the  years  this  Court  has  repeatedly  

observed that the right guaranteed  under Article 30,  

gives religious and linguistic minorities the right to  

establish  and  administer  educational  institutions  of  

their choice, but not to maladminister them and that the  

concerned  authorities  could  impose  conditions  for  

maintaining high standards of education, such as laying  

down the qualification of teachers to be appointed in  

such institutions and also the curriculum to be followed  

therein.  The question, however, is whether such measures  

would also include the right to regulate the admissions  

of students in the said institutions.   

142.  The first, second, third and fourth issues referred  

to hereinabove in paragraph 133, are intermingled and are

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taken  up  together  for  the  sake  of  convenience.   The  

aforesaid  issues  have  been  considered  and  answered  by  

this Court in the Ahmedabad St. Xavier's College Society  

case (supra), St. Stephen's College case (supra), Islamic  

Academy case  (supra),  P.A.  Inamdar's  case  (supra)  and  

exhaustively in the  T.M.A. Pai Foundation case (supra).  

Can,  therefore,  by  purporting  to  take  measures  to  

maintain  high  educational  standards  to  prevent  

maladministration,  the  MCI  and  the  DCI  resort  to  the  

amended  MCI  and  DCI  Regulations  to  circumvent  the  

judicial  pronouncements  in  this  regard?  The  answer  to  

such question would obviously have to be in the negative.

143.   The Supreme Court has consistently held that the  

right to administer an educational institution would also  

include the right to admit students, which right, in our  

view,  could  not  be  taken  away  on  the  basis  of  

Notifications issued by the MCI and the DCI which had no  

authority, either under the 1956 Act or the 1948 Act, to  

do so.  The MCI and the DCI are creatures of Statute,

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having been constituted under the Indian Medical Council  

Act,  1956,  and  the  Dentists  Act,  1948,  and  have,  

therefore, to exercise the jurisdiction vested in them by  

the Statutes and they cannot wander beyond the same. Of  

course, under Section 33 of the 1956 Act and Section 20  

of  the  1948  Act,  power  has  been  reserved  to  the  two  

Councils to frame Regulations to carry out the purposes  

of their respective Acts.   It is pursuant to such power  

that the MCI and the DCI has framed the Regulations of  

1997,  2000  and  2007,  which  set  the  standards  for  

maintaining  excellence  of  medical  education  in  India.  

The  right  of  the  MCI  and  the  DCI  to  prescribe  such  

standards  has  been  duly  recognised  by  the  Courts.  

However, such right cannot be extended to controlling all  

admissions  to  the  M.B.B.S.,  the  B.D.S.  and  the  Post-

graduate  Courses  being  run  by  different  medical  

institutions in the country.  At best, a certain degree  

of  control  may  be  exercised  in  regard  to  aided  

institutions,  where  on  account  of  the  funds  being

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provided by the Government, it may have a say in the  

affairs of such institutions.   

144.  These questions have already been considered and  

decided  in  the  T.M.A.  Pai  Foundation case  (supra),  

wherein,  it  was  categorically  held  that  the  right  to  

admit students being an essential facet of the right of a  

private medical institution, and, in particular, minority  

institutions  which  were  unaided,  non-capitation  fee  

educational  institutions,  so  long  as  the  process  of  

admission to such institutions was transparent and merit  

was adequately taken care of, such right could not be  

interfered  with.  Even  with  regard  to  aided  minority  

educational  institutions  it  was  indicated  that  such  

institutions  would  also  have  the  same  right  to  admit  

students belonging to their community, but, at the same  

time, it should also admit a reasonable number of non-

minority  students  which  has  been  referred  to  as  the  

"sprinkling  effect"  in  the  Kerala  Education  Bill case  

(supra).

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145.  The rights of private individuals to establish and  

administer educational institutions under Article 19(1)

(g) of the Constitution are now well-established and do  

not require further elucidation. The rights of unaided  

and  aided  religious  and  linguistic  minorities  to  

establish  and  administer  educational  institutions  of  

their choice under Article 19(1)(g), read with Article 30  

of the Constitution, have come to be crystalised in the  

various decisions of this Court referred to hereinabove,  

which  have  settled  the  law  that  the  right  to  admit  

students  in  the  different  educational  and  medical  

institutions  is  an  integral  part  of  the  right  to  

administer and cannot be interfered with except in cases  

of  maladministration  or  lack  of  transparency.   The  

impugned  Regulations,  which  are  in  the  nature  of  

delegated legislation,  will have to make way for the  

Constitutional  provisions.   The  freedom  and  rights  

guaranteed under Articles 19(1)(g), 25, 26 and 30 of the  

Constitution to all citizens to practise any trade or

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profession and  to religious minorities to freedom of  

conscience and the right freely to profess, practise and  

propagate religion, subject to public order, morality and  

health and to the other provisions of Part III of the  

Constitution, and further to maintain institutions for  

religious  and  charitable  purposes  as  guaranteed  under  

Articles 25 and 26 of the Constitution, read with the  

rights guaranteed under Article 30 of the Constitution,  

are also well-established by various pronouncements of  

this Court. Over and above the aforesaid freedoms and  

rights  is  the  right  of  citizens  having  a  distinct  

language, script or culture of their own, to conserve the  

same under Article 29(1) of the Constitution.   

146.  Nowhere  in  the  1956  Act  nor  in  the  MCI  

Regulations,  has  the  Council  been  vested  with  any  

authority  to  either  conduct  examinations  or  to  direct  

that all admissions into different medical colleges and  

institutions in India would have to be on the basis of  

one  common  National  Eligibility-cum-Entrance  Test,

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thereby  effectively  taking  away  the  right  of  the  

different  medical  colleges  and  institutions,  including  

those run by religious and linguistic minorities, to make  

admissions  on  the  basis  of  their  own  rules  and  

procedures.   Although,  Mr.  Gupta  has  contended  that  

Section 33(l) of the 1956 Act entitles the MCI to make  

regulations  regarding  the  conduct  of  professional  

examinations, the same, in our view, does not empower the  

MCI to actually hold the entrance examination, as has  

been purported to be done by the holding of the NEET.  

The  power  to  frame  regulations  for  the  conduct  of  

professional  examinations  is  a  far  cry  from  actually  

holding the examinations and the two cannot be equated,  

as suggested by Mr. Gupta.   

147.  Although,  the  controversy  has  been  extended  to  

include the amendments made to the Entries in the Second  

and  Third  Lists  of  the  Seventh  Schedule  to  the  

Constitution and the deletion of Entry 11 from the State  

List and the introduction of Entry 25 in the Concurrent

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List, on behalf of the MCI it has been reiterated that  

the impugned Notifications and amended Regulations had  

been made under Entry 66 of List I by the MCI acting on  

its  delegated  authority  and  would,  therefore,  have  an  

overriding effect over any State law on the subject.

As already indicated hereinbefore, the right of the  

MCI to frame Regulations under Entry 66, List I, does not  

take us anywhere, since the freedoms and rights sought to  

be enforced by the Petitioners flow from Articles 19(1)

(g),  25,  26,  29(1)  and  30  of  the  Constitution  which  

cannot be superseded by Regulations framed by a Statutory  

authority by way of delegated legislation. The fact that  

such power was exercised by the MCI and the DCI with the  

previous  approval  of  the  Central  Government,  as  

contemplated under Section 33 of the 1956 Act and under  

Section 20 of the 1948 Act, would not bestow upon the  

Regulations framed by the MCI and DCI, which are in the  

nature  of  subordinate  legislation,  primacy  over  the  

Constitutional  provisions  indicated  above.   A  feeble

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attempt  has  been  made  by  Mr.  Gupta  to  suggest  that  

admission into institutions run by the Christian Church  

depended on selection of students by the Diocese.  This  

procedure,  according  to  Mr.  Gupta,  was  against  the  

concept of recognition of merit.    

148. In our judgment, such a stand is contrary to the  

very essence of Articles 25, 26, 29(1) and 30 of the  

Constitution.  In view of the rights guaranteed under  

Article 19(1)(g) of the Constitution, the provisions of  

Article  30  should  have  been  redundant,  but  for  the  

definite object that the framers of the Constitution had  

in mind that religious and linguistic minorities should  

have the fundamental right to preserve their traditions  

and religious beliefs by establishing and administering  

educational institutions of their choice.  There is no  

material on record to even suggest that the Christian  

Medical  College,  Vellore,  or  its  counter-part  in  

Ludhiana,  St.  John's  College,  Bangalore,  or  the  

linguistic minority institutions and other privately-run

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institutions,  aided  and  unaided,  have  indulged  in  any  

malpractice in matters of admission of students or that  

they had failed the triple test referred to in  P.A.  

Inamdar's case (supra).  On the other hand, according to  

surveys held by independent entities, CMC, Vellore and  

St. John's Medical College, Bangalore, have been placed  

among the top Medical Colleges in the country and have  

produced some of the most brilliant and dedicated doctors  

in  the  country  believing  in  the  philosophy  of  the  

institutions based on Christ's ministry of healing and  

caring for the sick and maimed.

149.  Although, there is some difference of opinion as to  

the  right  to  freedom  of  religion  as  guaranteed  under  

Article 25 of the Constitution being confined only to  

individuals and not organizations in regard to religious  

activities,  Article  26(a)  very  clearly  indicates  that  

subject  to  public  order,  morality  and  health,  every  

religious denomination or any section thereof shall have  

the  right  to  establish  and  maintain  institutions  for

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religious and charitable purposes.  The emphasis is not  

on religious purposes alone, but extends to charitable  

purposes  also,  which  would  include  the  running  of  a  

hospital to provide low-cost, but efficient medical care  

to  all,  which  the  CMC,  Vellore,  and  other  private  

missionary  hospitals  of  different  denominations  are  

doing.  So long as a private institution satisfies the  

triple test indicated in P.A. Inamdar’s case (supra), no  

objection can be taken to the procedure followed by it  

over the years in the matter of admission of students  

into its M.B.B.S. and Post-graduate courses in medicine  

and  other  disciplines.   Except  for  alleging  that  the  

admission procedure was controlled by the Church, there  

is  nothing  even  remotely  suggestive  of  any  form  of  

maladministration on the part of the medical institutions  

being run by the Petitioner Association.   

150.   This brings us to the issue regarding the impact  

of the NEET on the right of the religious and linguistic  

minorities in view of the provisions of Article 30(1) of

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the Constitution.  Although, the said question has been  

dealt with to some extent while dealing with the other  

issues, certain aspects thereof still need to be touched  

upon.  As has been mentioned hereinbefore, having regard  

to  the  provisions  of  Article  19(1)(g)  of  the  

Constitution,  the  provisions  of  Article  30  would  have  

been redundant had not the framers of the Constitution  

had some definite object in mind in including Article 30  

in  the  Constitution.   This  Court  has  had  occasion  in  

several  matters  to  consider  and  even  deal  with  the  

question.  In the Ahmedabad St. Xavier's College Society  

case (supra), it was held that the right under Article  

30(1)  is  more  in  the  nature  of  protection  and  was  

intended to instill confidence in minorities against any  

executive or legislative encroachment on their right to  

establish  and  administer  educational  institutions  of  

their choice.  While the aforesaid observations help in  

understanding the intention of the Constituent Assembly  

in  including  Article  30  in  the  Constitution  as  a

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fundamental right untrammeled by any restrictions, as in  

the case of other fundamental rights, the real spirit of  

the said Article has been captured by Justice V. Krishna  

Iyer  in Jagdish  Sharan's  case   (supra),  wherein  His  

Lordship observed that merit cannot be measured in terms  

of  marks  alone,  but  human  sympathies  are  equally  

important.  His Lordship's further observations that the  

heart is as much a factor as the head in assessing the  

social  value  of  a  member  of  the  medical  profession,  

completes the picture.  This, in fact, is what has been  

attempted to be conveyed by Mr. Harish Salve, appearing  

for the CMC Vellore, while submitting that under Article  

30 of the Constitution an educational institution must be  

deemed to have the right to reject a candidate having  

superior marks as against a candidate who having lesser  

marks conformed to the beliefs, aspirations and needs of  

the institution for which it was established.

151.   One of the eleven questions which came to be  

considered by the Eleven Judge Bench in the  T.M.A. Pai

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Foundation case, namely, Question 5(a), was whether the  

minority's rights to establish and administer educational  

institutions of their choice would include the procedure  

and method of admission and selection of students.  While  

dealing with one of the five issues reformulated by the  

Chief  Justice  as  to  whether  there  can  be  Government  

regulations in case of private institutions and, if so,  

to what extent, it was indicated in the majority judgment  

that  the  right  to  establish  and  administer  broadly  

comprises various rights, including the right to admit  

students  in  regard  to  private  unaided  non-minority  

educational institutions.  It was further observed that,  

although,  the  right  to  establish  an  educational  

institution can be regulated, such regulatory measures  

must, in general, be to ensure the maintenance of proper  

academic  standards,  atmosphere  and  infrastructure  

(including  qualified  staff)  and  the  prevention  of  

maladministration by those in-charge of management, and  

that the fixing of a rigid fee structure, dictating the

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formation  and  composition  of  the  Governing  Body,  

compulsory  nomination  of  teachers  and  staff  for  

appointment or nominating students for admissions, would  

be unacceptable restrictions.  

152. As far as private unaided professional colleges are  

concerned, the majority view was that it would be unfair  

to  apply  the  same  rules  and  regulations  regulating  

admission  to  both  aided  and  unaided  professional  

institutions.  In that context, it was suggested that it  

would be permissible for the University or the Government  

at the time of granting recognition, to require a private  

unaided institution to provide for merit-based selection,  

while, at the same time, giving the management sufficient  

discretion in admitting students, which could be done by  

reserving a certain percentage of seats for admission by  

the management out of those students who had passed a  

common entrance test held by itself, while the rest of  

the seats could be filled up on the basis of counselling  

by the State agency, which would take care of the poorer

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and backward sections of society.

153. However, as far as the aided private minority  

institutions  are  concerned,  the  inter-play  between  

Article  30  and  Article  29(2)  of  the  Constitution  was  

taken  note  of  in  the  majority  decision  and  after  

considering  the  various  decisions  on  the  said  issue,  

including the decision in  D.A.V. College Vs.  State of  

Punjab [(1971) 2 SCC 269] and the Ahmedabad St. Xavier's  

College Society case (supra), reference was made to the  

observations made by Chief Justice Ray, as His Lordship  

then was, that, in the field of administration, it was  

not reasonable to claim that minority institutions would  

have  complete  autonomy.   Checks  on  the  administration  

would  be  necessary  in  order  to  ensure  that  the  

administration was efficient and sound and would serve  

the academic needs of the institution.  Reference was  

also  made  to  the  concurring  judgment  of  Khanna,  J.,  

wherein the learned Judge, inter alia, observed that the  

right conferred upon religious and linguistic minorities

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under  Article  30  is  to  establish  and  administer  

educational institutions of their choice.  Administration  

connotes management of the affairs of the institution and  

such  management  must  be  free  of  control  so  that  the  

founders or their nominees could mould the institution as  

they thought fit and in accordance with the ideas of how  

the  interest  of  the  community  in  general  and  the  

institution  in  particular  would  be  best  served.   The  

learned  Judge  was  of  the  view  that  the  right  of  the  

minorities to administer educational institutions did not  

prevent the making of reasonable regulations in respect  

of  such  institutions,  but  such  regulations  could  not  

impinge upon the minority character of the institution  

and  a  balance  had  to  be  maintained  between  the  two  

objectives  - that of ensuring the standard of excellence  

of the institution and that of preserving the right of  

minorities to establish and administer their educational  

institutions.

154.   The learned Judges also approved the view taken

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in the  St. Stephen's College case (supra) regarding the  

right of aided minority institutions to give preference  

to students of its own community for admission.  Their  

Lordships,  however,  had  reservations  regarding  the  

rigidity  of  percentage  of  students  belonging  to  the  

minority community to be admitted.

155.   While  answering  Question  4  as  to  whether  the  

admission  of  students  to  minority  educational  

institutions, whether aided or unaided, can be regulated  

by the State Government or by the University to which the  

institution is affiliated, the learned Judges held that  

admission  of  students  to  unaided  minority  educational  

institutions,  namely,  schools  and  under-graduate  

colleges,  cannot  be  regulated  by  the  State  or  the  

University  concerned,  except  for  providing  the  

qualifications and minimum conditions of eligibility in  

the interest of academic standards.  The learned Judges  

further held that the right to admit students, being an  

essential facet of the right to administer educational

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institutions  of  their  choice,  as  contemplated  under  

Article 30 of the Constitution, the State Government or  

the University may not be entitled to interfere with that  

right,  so  long  as  the  admission  to  the  unaided  

educational institutions was on a transparent basis and  

merit was adequately taken care of.  The learned Judges  

went on to indicate that the right to administer, not  

being absolute, there could be regulatory measures for  

ensuring educational standards and maintaining excellence  

thereof, and it was more so in the matter of admissions  

to professional institutions.   

156.   In  answering  Question  5(a),  as  to  whether  the  

rights  of  minorities  to  establish  and  administer  

educational institutions of their choice would include  

the procedure and method of admission and selection of  

students,  the  learned  Judges  held  that  a  minority  

institution  may  have  its  own  procedure  and  method  of  

admission as well as selection of students, but such a  

procedure must be fair and transparent and the selection

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of  students  in  professional  and  higher  educational  

colleges should be on the basis of merit and even an  

unaided minority institution should not ignore the merit  

of the students for admission while exercising its right  

to admit students to professional institutions.  On the  

question  whether  the  rights  of  minority  institutions  

regarding  admission  of  students  and  to  lay  down  the  

procedure and method of admission would be affected, in  

any way, by receipt of State aid, the learned Judges were  

of  the  view  that  while  giving  aid  to  professional  

institutions, it would be permissible for the authority  

giving  aid  to  prescribe  conditions  in  that  regard,  

without,  however,  affecting  the  right  of  such  

institutions to actually admit students in the different  

courses run by them.

157.  What can ultimately be culled out from the various  

observations  made  in  the  decisions  on  this  issue,  

commencing from the Kerala Education Bill case (supra) to  

recent  times,  is  that  admissions  to  educational

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institutions have been held to be part and parcel of the  

right of an educational institution to administer and the  

same  cannot  be  regulated,  except  for  the  purpose  of  

laying down standards for maintaining the excellence of  

education being provided in such institutions.  In the  

case of aided institutions, it has been held that the  

State  and  other  authorities  may  direct  a  certain  

percentage of students to be admitted other than by the  

method adopted by the institution.  However, in cases of  

unaided  institutions,  the  position  is  that  except  for  

laying down standards for maintaining the excellence of  

education, the right to admit students into the different  

courses could not be interfered with.  In the case of  

aided minority institutions, it has been held that the  

authority giving aid has the right to insist upon the  

admission  of  a  certain  percentage  of  students  not  

belonging to the minority community, so as to maintain  

the balance of Article 19(2) and Article 30(1) of the  

Constitution.   Even  with  regard  to  unaided  minority

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institutions,  the  view  is  that  while  the  majority  of  

students  to  be  admitted  should  be  from  the  minority  

community  concerned,  a  certain  percentage  of  students  

from  other  communities  should  also  be  admitted  to  

maintain  the  secular  character  of  education  in  the  

country  in  what  has  been  described  as  a  "sprinkling  

effect".

158. Mr.  Parasaran's  submissions  with  regard  to  

the concept of "Rag Bag" legislation would not apply to  

the  facts  of  these  cases  since  the  amendments  to  the  

Regulations of 1997, 2000 and 2007 were effected under  

Entry 66, List I of the Seventh Schedule and no recourse  

was taken to Entry 25 of the Concurrent List by the MCI  

and DCI while amending the said Regulations.  

159.  This brings us to the last issue, which has  been  

raised before us regarding the impact of the Presidential  

Orders made under Article 371D of the Constitution of  

India.  As pointed out by Mr. L. Nageshwar Rao, learned

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Senior Advocate, special enactments have been made in the  

States  of  Andhra  Pradesh  and  Tamil  Nadu  regarding  

admission of students in the different medical colleges  

and institutions being run in the said States.  The said  

legislation  being  under  Entry  25  of  List  III  of  the  

Seventh Schedule to the Constitution, the question which  

arises is whether the amended MCI Regulations would have  

primacy over the said State enactments.  The question is  

answered  by  Article  371-D  of  the  Constitution  which  

empowers the President to make special provisions with  

respect to the State of Andhra Pradesh, including making  

orders  with  regard  to  admission  in  educational  

institutions.  Clause 10 of Article 371-D provides as  

follows:

"The provisions of this article and of  any  order  made  by  the  President  thereunder  shall  have  effect  notwithstanding  anything  in  any  other  provision of this Constitution or in any  other law for the time being in force."

 Accordingly, the enactments made in the States of  

Andhra Pradesh and Tamil Nadu will remain unaffected by

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the impugned Regulations.  We have already held that the  

Regulations and the amendments thereto have been framed  

by the MCI and the DCI with the previous permission of  

the Central Government under Entry 66, List I, but that  

the Regulations cannot prevail over the constitutional  

guarantees under Articles 19(1)(g), 25, 26, 29(1) and 30  

of the Constitution.   

160.   Apart  from  the  legal  aspects,  which  have  been  

considered at length, the practical aspect of holding a  

single National Eligibility-cum-Entrance Test needs to be  

considered.   Although,  it  has  been  submitted  by  the  

learned Additional Solicitor General that a single test  

would help poor students to avoid sitting for multiple  

tests,  entailing  payment  of  fees  for  each  separate  

examination, it has to be considered as to who such poor  

students could be.  There can be no controversy that the  

standard of education all over the country is not the  

same.   Each  State  has  its  own  system  and  pattern  of  

education,  including  the  medium  of  instruction.   It

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cannot also be disputed that children in the metropolitan  

areas enjoy greater privileges than their counter-parts  

in  most  of  the  rural  areas  as  far  as  education  is  

concerned, and the decision of the Central Government to  

support a single entrance examination would perpetuate  

such divide in the name of giving credit to merit.  In a  

single window competition, the disparity in educational  

standards in different parts of the country cannot ensure  

a level playing field.  The practice of medicine entails  

something more than brilliance in academics, it requires  

a  certain  commitment  to  serve  humanity.   India  has  

brilliant doctors of great merit, who are located mostly  

in  urban  areas  and  whose  availability  in  a  crisis  is  

quite uncertain.  What is required to provide health care  

to the general masses and particularly those in the rural  

areas,  are  committed  physicians  who  are  on  hand  to  

respond to a crisis situation.  Given the large number of  

people who live in the villages in difficult conditions,  

the country today has more need of such doctors who may

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not  be  specialists,  but  are  available  as  general  

physicians to treat those in need of medical care and  

treatment in the far flung areas of the country, which is  

the essence of what was possibly envisaged by the framers  

of the Constitution in including Article 30 in Part III  

of the Constitution.  The desire to give due recognition  

to merit is laudable, but the pragmatic realities on the  

ground relating to health care, especially in the rural  

and  tribal  areas  where  a  large  section  of  the  Indian  

population resides, have also to be kept in mind when  

policy  decisions  are  taken  in  matters  such  as  this.  

While the country certainly needs brilliant doctors and  

surgeons and specialists and other connected with health  

care, who are equal to any in other parts of the world,  

considering ground realities, the country also has need  

for  "barefoot  doctors",  who  are  committed  and  are  

available  to  provide  medical  services  and  health  care  

facilities in different areas as part of their mission in  

becoming doctors.

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161.  In the light of our aforesaid discussions and the  

views expressed in the various decisions cited, we have  

no  hesitation  in  holding  that  the  "Regulations  on  

Graduate Medical Education (Amendment) 2010 (Part II)"  

and  the  "Post  Graduate  Medical  Education  (Amendment)  

Regulation, 2010 (Part II)", whereby the Medical Council  

of India introduced the single National Eligibility-cum-

Entrance  Test  and  the  corresponding  amendments  in  the  

Dentists Act, 1948, are  ultra vires the provisions of  

Articles  19(1)(g),  25,  26(a),  29(1)  and  30(1)  of  the  

Constitution, since they have the effect of denuding the  

States, State-run Universities and all medical colleges  

and institutions, including those enjoying the protection  

of the above provisions, from admitting students to their  

M.B.B.S., B.D.S. and Post-graduate courses, according to  

their own procedures, beliefs and dispensations, which  

has  been  found  by  this  Court  in  the   T.M.A.  Pai  

Foundation case (supra), to be an integral facet of the  

right to administer.  In our view, the role attributed to

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and the powers conferred on the MCI and the DCI under the  

provisions of the Indian Medical Council Act, 1956, and  

the  Dentists  Act,  1948,  do  not  contemplate  anything  

different  and  are  restricted  to  laying  down  standards  

which are uniformly applicable to all medical colleges  

and institutions in India to ensure the excellence of  

medical education in India.  The role assigned to the MCI  

under Sections 10A and 19A(1) of the 1956 Act vindicates  

such a conclusion.

162.  As an off-shoot of the above, we also have no  

hesitation in holding that the Medical Council of India  

is not empowered under the 1956 Act to actually conduct  

the NEET.

163.  The Transferred Cases and the Writ Petitions are,  

therefore, allowed and the impugned Notifications Nos.  

MCI-31(1)/2010-MED/49068,  and  MCI.18(1)/2010-MED/49070,  

both dated 21st December, 2010, published by the Medical  

Council of India along with Notification Nos. DE-22-2012

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dated 31st May, 2012, published by the Dental Council of  

India   and  the  amended  Regulations  sought  to  be  

implemented thereunder along with Notification Nos. DE-

22-2012 dated 31st May, 2012, published by the Dental  

Council of India, are hereby quashed.  This will not,  

however,  invalidate  actions  so  far  taken  under  the  

amended  Regulations,  including  the  admissions  already  

given on the basis of the NEET conducted by the Medical  

Council of India, the Dental Council of India and other  

private medical institutions, and the same shall be valid  

for all purposes.

164.  Having regard to the nature of the cases decided by  

this judgment, the parties thereto will bear their own  

costs.   

...................CJI.    (ALTAMAS KABIR)

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.....................J.  (VIKRAMAJIT SEN)

New Delhi Dated: July 18, 2013.     

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

T.C. (C) NO.98 OF 2012

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS.             …PETITIONERS  

VERSUS

UNION OF INDIA AND ORS.         …RESPONDENTS

WITH

T.C. (C) NO.99/2012 and batch

ANIL R. DAVE, J.

1. I have carefully gone through the elaborate judgment  

delivered  by  the  learned  Chief  Justice.   After  going  

through the judgment, I could not persuade myself to  

share the same view.

2. As  the  learned Chief  Justice  is  to  retire  within  a  few  

days, I have to be quick and therefore, also short.  Prior  

to  preparation  of  our  draft  judgments  we  had  no  

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discussion on the subject  due to paucity of time and  

therefore,  I  have  to  express  my  different  views  but  

fortunately the learned Chief Justice has discussed the  

facts,  submissions  of  the  concerned  counsel  and  the  

legal position in such a detail that I need not discuss the  

same again  so  as  to  make  the  judgment  lengthy  by  

repeating  the  submissions  and  the  legal  provisions,  

especially when I am running against time.

3. Sum and  substance  of  all  these  petitions  is  that  the  

Medical Council of India (hereinafter referred to as ‘the  

MCI’) should not be entrusted with a right to conduct  

National  Eligibility-cum-  Entrance  Test  (hereinafter  

referred to as ‘the NEET’) and whether introduction of  

the  NEET  would  violate  fundamental  rights  of  the  

petitioners guaranteed under the provisions of Articles  

19(1)(g),  25,  26,  29(1)  and 30  of  the  Constitution of  

India.

4. The submissions are to the effect that if the MCI or any  

other body conducts examination in the nature of the  

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NEET,  the  petitioners,  who  are  managing  medical  

colleges,  would not  be in  a  position to exercise their  

discretion in relation to giving admission to the students  

in their colleges and therefore, their fundamental right  

guaranteed under Article 19(1)(g) and the rights of the  

minority institutions under Articles 29 and 30 would be  

violated.   The  submission  is  to  the  effect  that  the  

minority  institutions  should  have  full  and  unfettered  

right  to  select  the  students  who are  to  be  imparted  

education in their colleges.  Any restriction or regulation  

of  whatsoever  type,  would  violate  their  fundamental  

rights.  Thus, what is to be seen by this Court is whether  

the system sought to be introduced by the MCI under  

the provisions of the Indian Medical Council Act, 1956  

(hereinafter referred to as ‘the Act’) is violative of any of  

the legal or constitutional provisions.  In the process of  

deciding  so,  in  my  opinion,  this  Court  also  has  to  

examine  whether  it  would  be  in  the  interest  of  the  

society and the students aspiring to study medicine to  

have a common examination in the nature of the NEET.

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5. Sections  19A  and  20  of  the  Act,  which  have  been  

reproduced in  the judgment  delivered by the learned  

Chief Justice, permit the MCI to prescribe the minimum  

standards of medical education.  Section 33 of the Act  

also empowers the MCI to make regulations to carry out  

the  purposes  of  the  Act.   Thus,  the  said  provisions  

enable  the  MCI  to  regulate  the  system  of  medical  

education throughout the country.   

6. Let me first of all consider the scope of the aforestated  

sections and the provisions of the Act in relation to the  

regulation of the standards of education to be imparted  

in medical colleges.  It  is a matter of sound common  

sense that to have doctors well versed in the subject of  

medicine and having proficiency in their field, we should  

have  suitable  and  deserving  students  who should  be  

imparted good medical education and there should be  

strict  supervision over the education system so as to  

see that the students who are not up to the mark or are  

not having the highest standards of education are not  

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declared successful at the examinations.

7. To achieve the aforestated ideal, the system should be  

such that it should have effective regulations at three  

different stages – The first stage is the admission of the  

students  to  medical  colleges.   The students  who are  

admitted to the medical course should be suitable and  

should  have  the  right  aptitude  so  that  they  can  be  

shaped  well  into  the  medical  profession  after  being  

imparted proper education.  The second stage is with  

regard to determination of syllabus and the manner of  

imparting  education  and  for  the  said  purpose,  the  

regulating authorities  should  see that  proper  medical  

training  is  given  to  the  students  and  for  the  said  

purpose sufficiently equipped hospitals should be there  

as  teaching  institutes.   It  should  also  be  seen  that  

sufficient  number  of  patients  are  treated  at  the  

hospitals  so  that  the  students  can  get  adequate  

practical training where the patients are being treated.  

Finally, the examinations, which the students have to  

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pass to prove their worth as successful students should  

also  be  strictly  regulated.   If  there  is  any  lacuna  or  

short-coming at any of the above three stages, it would  

adversely  affect  the  professional  standards  of  the  

students passing out from the educational institutions  

as physicians, who are trusted by the citizens of India at  

critical  moments,  when someone’s  life  is  at  stake.   I  

need  not  state  anything  more  with  regard  to  the  

importance of the medical field or the physicians as it is  

a matter of common knowledge that to maintain good  

health and to cure the diseases and to avoid or reduce  

trauma of  a  patient,  existence  of  a  trained  and  well  

groomed  doctor  is  a  sine  qua  non.  All  these  facts  

equally  apply  to  dentists  and  therefore,  I  am  not  

specially referring to them every time.

8. By virtue of introduction of the NEET to be conducted  

under  the  supervision  of  the  MCI,  standards  of  the  

students at the stage of their admission to the medical  

colleges, be it for admission to the M.B.B.S. course or  

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the post graduation studies in medical faculties, would  

be regulated.  Similarly, for imparting education to the  

students  studying  in  the  field  of  Dentistry,  Dental  

Council  of  India  (For  short  ‘the  DCI’)  has  to  regulate  

admissions  so  as  to  see  that  eligible  and  suitable  

students are admitted to the different  courses in  the  

field of dentistry.

9. There is no need to discuss the importance of quality of  

input, when something is to be produced, manufactured  

or developed.  Even when one thinks of manufacturing  

an  article,  the  manufacturer  is  conscious  about  the  

quality of the input and he would invariably select the  

best input i.e. such raw material so as to make his final  

product excellent.  Principle is not different in the field  

of  education.   If  an  educational  institution  wants  an  

excellent  output  in  the  nature  of  a  well  trained,  well  

educated,  well  groomed  professional,  the  institution  

must see that suitable and deserving students having  

an aptitude for becoming good doctors are admitted to  

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the medical college.  If among all good students, there  

are  students  who  are  not  up  to  the  mark,  who  are  

lagging behind in their studies, who are weak in studies,  

it  would  not  be  possible  to  educate  or  groom  such  

students  effectively  and  efficiently.   A  weak  student  

may lag behind due to his lower level  of grasping or  

education or training.  In the circumstances, it becomes  

the duty of the regulating authority to see that quality  

of the students at the stage of admission is thoroughly  

examined and only deserving and suitable students are  

given admission to the medical colleges so as to make  

them  suitable  members  of  a  noble  profession   upon  

completion  of  their  studies.   So  as  to  see  that  only  

deserving  and  suitable  students  are  admitted  to  the  

medical colleges, the MCI has introduced the NEET.  By  

virtue of introduction of the NEET, the students aspiring  

to become physicians or pursue further medical studies  

will  have  to  pass  the  NEET.   The  NEET  would  be  a  

nationwide common examination to be held at different  

places in  the country so that  all  students  aspiring to  

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have medical education, can appear in the examination  

and  ultimately,  on  the  basis  of  the  result  of  the  

examination, suitability and eligibility of the students for  

admission to the medical profession can be determined.  

This system is a part of regulation whereby entry to the  

field of medical education is regulated in such a way  

that  only  eligible  and  suitable  students  are  given  

admission to medical colleges.  

10. If the NEET is conducted under the supervision of the  

apex professional body, it  would inspire confidence in  

the  system  and  in  that  event,  the  selection  of  the  

students for admission to the medical profession would  

be  on  merit  based  selection.   No  extraneous  

consideration would come into play in  the process of  

selection.   The  process  of  selection  would  not  be  

influenced by irrelevant  factors  like  caste  and creed,  

community,  race,  lineage,  gender,  social  or  economic  

standing, place of residence – whether rural or urban,  

influence of wealth or power; and admission would be  

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given only to the students who really deserve to be well  

qualified physicians or dentists.   Thus, there would not  

be  any  discrimination  or  influence  in  the  process  of  

selection.  I may add here that though the students can  

be selected only on the basis of their merit, it would be  

open to the States to follow their reservation policy and  

it  would  also  be  open  to  the  institutions  based  on  

religious or linguistic minority to select students of their  

choice, provided the students so selected have secured  

minimum  marks  prescribed  at  the  NEET.   From and  

among  those  students,  who have  secured  prescribed  

qualifying marks, the concerned institutions, who want  

to give priority to the students belonging to a particular  

class or caste or creed or religion or region, etc. would  

be in a position to give preference to such students in  

the matter of their admission to the concerned medical  

college.  Thus, the purpose with which the Articles 25,  

26,  29,  and  30  are  incorporated  in  our  Constitution  

would be fully respected and implemented.  

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11. Furthermore,  centralization  of  the  selection  process  

under  holding  the  NEET  would  help  the  students  to  

appear  at  the  examination  from  any  corner  of  our  

nation.   The  result  of  the  examination  would  be  

published at the same time on one particular day and  

with  the  same  standard.    There  would  not  be  any  

problem with regard to equalizing marks and merits of  

different students passing different examinations from  

different  regions or  states  or  universities  or  colleges.  

The process of selection would be equal, fair, just and  

transparent.  All the students would be in a position to  

compete from a common platform and the test will have  

credibility in the eyes of the students and the society.  

There are number of professional institutions which are  

having only one professional examination and there are  

some  institutions  which  also  have  one  common  

entrance  test  which  would  decide  competence  and  

capability  of  a  student  for  being  admitted  to  the  

professional course and the system which is followed by  

them for years is quite satisfactory and successful.  The  

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students would be benefited because they will not have  

to  appear  at  different  places  on  different  days  at  

different  examinations  for  the  same purpose.   In  my  

opinion, the aforestated factors, in practical life, would  

surely  help  the  students,  the  profession  and  the  

institutions  which  are  not  money  minded  and  are  

sincere in their object of imparting medical education to  

the aspiring students.    The cost of appearing at  the  

NEET would be much less as the aspiring students will  

not  have  to  purchase  several  expensive  admission  

forms and will not have to travel to different places.

12. An apprehension has been voiced by the counsel for the  

petitioners  that  the  minority  institutions  or  the  

educational  institutions  belonging  to  special  classes  

would be adversely affected because of the introduction  

of the NEET.  In fact, the said apprehension is not well  

founded.  The policy with regard to the reservation can  

be  very  well  implemented  if  the  NEET  is  introduced  

because  the  NEET  would  determine  standard  or  

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eligibility of a student who is to be imparted education  

in  the  field  of  medicine.   The  institution  imparting  

medical education will have to see that the student to  

be admitted is having minimum standard of suitability  

and the institution will be at a liberty to select a student  

of its choice if it wants to promote a particular class of  

persons.  By admitting suitable and deserving students  

having an aptitude for becoming doctors, the religious  

institutions would be in a position to have better doctors  

for fulfilling their objective.

13. Moreover,  the  policy  with  regard  to  reservation  for  

certain classes, followed by the States would also not be  

adversely  affected.   From  the  deserving  eligible  

students,  who have procured qualifying marks  at  the  

NEET and who belong to the reserved classes would be  

given preference so as to fulfill the policy with regard to  

reservation.   Thus,  the  students  belonging  to  the  

reserved classes  would also  not  suffer  on account  of  

holding the NEET.   

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14. In the circumstances, it cannot be said that introduction  

of  the  NEET  would  adversely  affect  the  policy  with  

regard  to  the  reservation or  the  policy  of  the  States  

pertaining  to  upliftment  of  downtrodden  persons  

belonging to certain classes.   

15. The MCI has power to regulate medical education and  

similarly  the  DCI  has  also  the  power  to  regulate  the  

education in the field of Dentistry.  Meaning of the word  

‘to  regulate’  would  also  include  controlling  entry  of  

undeserving or weak students into the profession, who  

cannot be groomed in normal  circumstances as good  

physicians or doctors or dentists.  The term ‘regulate’  

would normally mean to control something by means of  

rules or by exercise of control over a system.  It is an  

admitted fact that one of the functions of these apex  

bodies of the professionals is to regulate the system of  

education.  In my opinion, we cannot put any fetter on  

the system introduced by these bodies, whereby they  

try  to  control  entry  of  weak  or  undeserving  or  less  

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competent  students  to  the  institutes  where  medical  

education is imparted.  Thus, in my opinion, the MCI and  

the  DCI  are  competent  to  exercise  their  right  to  

regulate the education system under the provisions of  

the Act and under the provisions of the Dentists Act,  

1948, which permit them to determine the standard of  

students who are to be admitted to these professional  

courses.   

16. Hence, I am of the view that the MCI and the DCI are  

entitled to regulate the admission procedure by virtue  

of the provisions of their respective Acts, which enable  

them to regulate and supervise the overall professional  

standards.

17. I  have now to see whether the legal provisions which  

permit  the  aforestated  apex  bodies  to  conduct  the  

NEET, so as to regulate admission of the students to  

medical  institutes,  are  in  accordance  with  legal  and  

Constitutional provisions.  The aforestated question has  

been rightly answered by this court in the case of  Dr.  

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Preeti  Srivastava and Another vs.  State of  M.P.  

and  Others  (1999)  7  SCC  120 to  the  effect  that  

norms of  admission will  have a  direct  impact  on the  

standards of education.  This court has observed that  

the standards of education in any institution or college  

would depend upon several factors and the caliber of  

the students to be admitted to the institutions would  

also be one of the relevant factors.  Moreover, in view of  

entry  25  of  List  III  of  the  Seventh  Schedule  to  the  

Constitution, Union as well as the States have power to  

legislate on the subject of medical education, subject to  

the  provisions  of  entry  66  of  List  I  of  the  Seventh  

Schedule, which deals with determination of standards  

in  institutions  for  higher  education.   In  the  

circumstances,  a  State  has  the  right  to  control  

education, including medical education, so long as the  

field is unoccupied by any Union legislation.  By virtue of  

entry 66 in List I to the Seventh Schedule, the Union can  

make laws with respect to determination of standards in  

institutions  for  higher  education.  Similarly,  subject  to  

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enactments,  laws  made  with  respect  to  the  

determination  of  standards  in  institutions  for  higher  

education under power given to the Union in entry 66 of  

List I of the Seventh Schedule, the State can also make  

laws relating to education, including technical education  

and medical education.  In view of the above position  

clarified in the case of Dr. Preeti Srivastava (supra),  

the NEET can be conducted under the supervision of the  

MCI as per the regulations framed under the Act.  As  

stated hereinabove, Section 33 of the Act enables the  

MCI to make regulations to carry out the purposes of  

the Act and therefore, conducting the NEET is perfectly  

legal.

18. In para 36 of the judgment delivered in the case of Dr.  

Preeti Srivastava (supra), this Court has held that for  

the purpose of maintaining standards of education, it is  

very much necessary  to see that  the  students  to  be  

admitted  to  the  higher  educational  institutions  are  

having  high  caliber  and  therefore,  in  the  process  of  

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regulating  educational  standards  in  the  fields  of  

medicine and dentistry also the above principle should  

be followed and the apex professional bodies should be  

permitted to conduct examinations in the nature of the  

NEET.  Regulations made under the Act and the Dentists  

Act,  1948  must  be  treated  as  part  of  the  Act  and  

therefore,  conducting the  NEET cannot be said  to  be  

illegal.  Submissions were made by the learned counsel  

for  the  petitioners  that  as  copies  of  the  draft  

Regulations, as required under Section 19A of the Act,  

were not forwarded to the State Governments, the said  

Regulations cannot be acted upon.  The said submission  

is  of  no  importance  for  the  reason  that  I  am  in  

agreement with the submission of the learned counsel  

appearing  for  the  MCI  that  the  said  provision  is  not  

mandatory  and  therefore,  non-supply  of  the  draft  

regulations would not adversely affect the validity of the  

Regulations and the  NEET.   It  also  appears  from the  

language used in Section 19A of the Act that the said  

provision with regard to furnishing copies of the draft  

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regulations  to  all  the  State  Governments  is  not  

mandatory and any defect in the said procedure would  

not vitiate validity of the Regulations or action taken in  

pursuance of the Regulations.  

 19. Similar question with regard to having a common test  

had arisen for admitting students aspiring to become  

veterinary surgeons.  The question was whether it was  

open to the apex body of the said profession to conduct  

a  common  entrance  test.   Ultimately,  the  issue  had  

been resolved by this court in the matter of Veterinary  

Council of India vs. Indian Council of Agricultural  

Research,  (2000)  1  SCC  750.  This  court,  after  

considering several issues similar to those which have  

been raised in these petitions, held that it was open to  

the concerned regulatory Council to conduct a common  

entrance test.   

20. So far as the rights guaranteed under Article 19(1)(g) of  

the Constitution with regard to practising any profession  

or carrying on any occupation, a trade or business, are  

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concerned,  it  is  needless  to  say  that  the  aforestated  

rights  are  not  unfettered.   Article  19(6)  of  the  

Constitution  permits  the  State  to  enact  any  law  

imposing reasonable restrictions on the rights conferred  

by  Article  19(1)(g)  in  relation  to  the  professional  or  

technical  qualifications  necessary  for  practising  any  

profession.  Enactments of the Act and the Dentists Act,  

1948,  including  Regulations  made  thereunder,  which  

regulate the professional studies cannot be said to be  

violative of the Constitutional rights guaranteed to the  

petitioners  under  Article  19(1)(g)  of  the  Constitution.  

The framers of the Constitution were conscious of the  

fact that anybody cannot be given a right to practise  

any profession without having regard to his  capacity,  

capability or competence.  To be permitted to practise a  

particular profession, especially when the profession is  

such  which  would  require  highly  skilled  person  to  

perform the professional duties, the State can definitely  

regulate the profession.  Even if we assume that all the  

petitioner  institutions  are  in  business  of  imparting  

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education,  they  cannot  also  have  unfettered  right  of  

admitting  undeserving  students  so  as  to  make  

substandard physicians and dentists.  One may argue  

here  that  ultimately,  after  passing  the  final  

examination,  all  students  who had joined the  studies  

would be at par and therefore, even if a very weak or  

substandard student is given admission, after passing  

the final examination, which is supervised by one of the  

apex bodies referred to hereinabove, he would be at par  

with other students who were eligible and suitable at  

the time when they were given admission.  In practical  

life, we do find a difference between a professional who  

has passed his professional examination at the first or  

second trial and the one who has passed examination  

after several trials.  Be that as it may, it is for the apex  

body of the professionals to decide as to what type of  

students should undergo the professional training.  The  

function with regard to regulating educational activity  

would be within the domain of the professional bodies  

and their decision must be respected so as to see that  

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the  society  gets  well  groomed  bright  physicians  and  

dentists.  Thus, in my opinion, the introduction of the  

NEET  would  not  violate  the  right  guaranteed  to  the  

petitioners  under  the  provisions of  Article  19(1)(g)  of  

the Constitution of India.   

21. So far as the rights guaranteed to the petitioners under  

the  provisions  of  Articles  25,  26,  29  and  30  are  

concerned, in my opinion, none of the rights guaranteed  

under  the  aforestated  Articles  would  be  violated  by  

permitting the NEET.  It is always open to the petitioners  

to  select  a  student  subject  to  his  being  qualified  by  

passing  the  examination  conducted  by  the  highest  

professional body.  This is to assure that the students  

who  are  to  undergo  the  professional  training  are  

suitable for the same.  Regulations relating to admission  

of  the  students  i.e.  admitting  eligible,  deserving  and  

bright students would ultimately bring reputation to the  

educational institutes.  I fail to understand as to why the  

petitioners are keen to admit undeserving or ineligible  

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students  when  eligible  and  suitable  students  are  

available.  I  am sure that even a scrupulous religious  

person or an educational  institution would not like to  

have  physicians  or  dentists  passing  through  its  

institution  to  be  substandard  so  as  to  bring  down  

reputation of the profession or the college in which such  

a substandard professional was educated.  Minorities -  

be  it  religious  or  linguistic,  can  impart  training  to  a  

student who is found worthy to be given education in  

the  field  of  medicine  or  dentistry  by the  professional  

apex body.   In  my opinion, the Regulations and the  

NEET would not curtail  or adversely affect any of the  

rights  of  such  minorities  as  apprehended  by  the  

petitioners.  On the contrary, standard quality of input  

would reasonably assure them of sterling quality of the  

final output of the physicians or dentists, who pass out  

through their educational institutions.

22. An apprehension was voiced by some of  the  counsel  

appearing  for  the  petitioners  that  autonomy  of  the  

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petitioner  institutions  would  be  lost  if  the  NEET  is  

permitted.  I fail to understand as to how autonomy of  

the  said  institutions  would  be  adversely  affected  

because of the NEET.  The Government authorities or  

the professional bodies named hereinabove would not  

be creating any hindrance in the administrative affairs  

of the institutions.  Implementation of the NEET would  

only give better students to such institutions and from  

and among such highly qualified and suitable students,  

the minority institutions will have a right to select the  

students of their choice.  At this stage, the institutions  

would  be  in  a  position  to  use  their  discretion  in  the  

matter  of selection of students.   It  would be open to  

them to give weightage to the religion, caste, etc of the  

student.  The institutions would get rid of the work of  

conducting their separate examinations and that would  

be  a  great  relief  to  them.   Except  some  institutions  

having some oblique motive behind selecting students  

who  could  not  prove  their  mettle  at  the  common  

examination, all educational institutes should feel happy  

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to get  a  suitable and eligible  lot  of students,  without  

making any effort for selecting them.   

 23. For the reasons recorded hereinabove, in my opinion, it  

cannot  be  said  that  introduction  of  the  NEET  would  

either violate any of the fundamental or legal rights of  

the  petitioners  or  even  adversely  affect  the  medical  

profession.   In  my  opinion,  introduction  of  the  NEET  

would ensure more transparency and less hardship to  

the students eager to join the medical profession.  Let  

us see the consequence, if the apex bodies of medical  

profession are not permitted to conduct the NEET.  A  

student, who is good at studies and is keen to join the  

medical  profession, will  have to visit  several  different  

States  to  appear  at  different  examinations  held  by  

different medical colleges or institutes so as to ensure  

that he gets admission somewhere.  If he appears only  

in one examination conducted by a particular University  

in a particular State and if he fails there, he would not  

stand a chance to get medical education at any other  

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place.  The NEET will facilitate all students desirous of  

joining the medical profession because the students will  

have  to  appear  only  at  one  examination  and  on the  

basis of the result of the NEET, if he is found suitable, he  

would be in a position to get admission somewhere in  

the country and he can have the medical education if  

he is inclined to go to a different place.  Incidentally, I  

may state here that learned senior counsel Mr. Gupta  

had  informed  the  Court  that  some  medical  colleges,  

who are more in a profiteering business rather than in  

the  noble  work  of  imparting  medical  education,  take  

huge amount by way of donation or capitation fees and  

give admission to undeserving or weak students under  

one  pretext  or  the  other.    He  had  also  given  an  

instance to support the serious allegation made by him  

on the subject.  If only one examination in the country is  

conducted and admissions are given on the basis of the  

result  of  the  said  examination,  in  my  opinion,  

unscrupulous  and  money  minded  businessmen  

operating in the field of education would be constrained  

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to stop their corrupt practices and it would help a lot,  

not only to the deserving students but also to the nation  

in bringing down the level of corruption.   

24. For the aforestated reasons, I am of the view that the  

petitioners are not entitled to any of the reliefs prayed  

for in the petitions.  The impugned notifications are not  

only legal in the eyes of law but are also a boon to the  

students  aspiring  to  join  medical  profession.   All  the  

petitions are, therefore, dismissed with no order as to  

costs.  

               ........................................J.

                                                     (ANIL R. DAVE)                                            

New Delhi July 18, 2013

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