REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 8170 OF 2009

Indian Medical Association …Appellant

Versus

Union of India & Ors.         …Respondents

WITH  

CIVIL APPEAL NO. 8171 OF 2009  

Indian Medical Association …Appellant  

Versus

Army College of Medical Sciences & Ors. …Respondents

WITH  

WRIT PETITION (CIVIL) NO. 192 OF 2010

Ashima Mutneja …Appellant

Versus

Guru Gobind Singh Indraprastha University & Ors. ...Respondents

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WITH

WRIT PETITION (CIVIL) NO. 320 OF 2009  

Rachit Gupta & Ors. …Appellants  

Versus

Guru Gobind Singh Indraprastha University & Anr. ...Respondents

WITH

WRIT PETITION (CIVIL) NO. 528 OF 2009

Ashima Mutneja …Appellant

Versus

Guru Gobind Singh Indraprastha University & Anr. ...Respondents

JUDGEMENT

B.SUDERSHAN REDDY,J:

Where the mind is without fear and the head is held high Where knowledge is free Where the world has not broken up into fragments By narrow domestic walls Where words come out from the depth of truth

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Where tireless striving stretches its arms towards perfection Where the clear stream of reason has not lost its way Onto the dreary desert sand of dead habit Where the mind is led forward by thee Into ever-widening thought and action Into  that  heaven of  freedom,  my Father,  let  my country  awake.

-  Poet  Laureate,  Rabindranath  Tagore

I.

2. The vexed question of access to education has hounded India from  

times immemorial. The futile pleadings of an Ekalavya for a teacher, that  

could not even be suppressed in the recesses of our cultural consciousness,  

to the modern day demands for exclusion from portals of knowledge of the  

“others”, deemed to be unfit even if lip service of acknowledgement is paid  

that such “unfitness” may be due to no fault  of theirs but is rather on  

account of their social, economic and cultural circumstances, gouges our  

very national soul. Even as higher levels of knowledge becomes vital for  

survival,  and its technologies become capable of empowering those who  

belong to groups, that historically and in the present have been excluded  

from the liberating prowess of knowledge, this country seems to witness,  

as in the past, a resurgence in demands that knowledge be parceled out,  

through  tight  fisted  notions  of  excellence,  and  concepts  of  merit  that  

pander to the early advantages of already empowered groups.  

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3. For much of our history, most of our people were told that they were  

excluded, for no fault of theirs in this and here, but on account of some  

past mistakes. Hope was restricted to the duty that was supposed to attach  

itself to station ascribed by a cruel fate, cast as cosmic justice. This order  

that parceled knowledge, by grades of ascribed status, chiefly of birth and  

of circumstances beyond the control of the young, weakened this country.  

It weakened our country because it reduced the pool of those who were to  

receive higher levels of knowledge to only a small  portion of the upper  

crust.  This  in  turn weakened our  method of  knowing and creating new  

knowledge - knowledge of the deductive kind was extolled primarily for its  

elegance, and its practical significance derided, and soon enough turned  

into metaphysics of mysticism that palliated the deprived with paens of a  

next life. This weakened our ability to apply knowledge to practical affairs  

of all segments of population, and effectively shut off the feed back loop  

that practice by users could have provided, so that new knowledge could  

be generated. Our practical knowledge ossified, and deductive knowledge  

became ever more ready to justify the worth of the high and the mighty,  

for  such  justification  brought  status  to  the  peddlers  of  mysticism  and  

enabled the high and the mighty to evade questions of accountability to the  

masses.

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4. It was that truth that our national poet spoke about when he prayed  

that knowledge would be free. It was that truth that the makers of modern  

India, those great souls, who could see the causes for past events, and  

foresee the needs of the future, tried to inscribe in our Constitution. It is  

not any wonder that our first Prime Minister in the excitement of the first  

seconds of freedom from foreign rule spoke about our “tryst with destiny”  

to the Constituent Assembly, and yet in the same breath also added “now  

the time comes when we shall  redeem our pledge, not wholly or in full  

measure, but very substantially.” As Amartya Sen points out those were  

heady times, of promises made and of hope kindled1. And we, as a nation,  

promised ourselves that our huddled masses, condemned to rot in squalor,  

ignorance and powerlessness on account of the incessant exploitation by  

the elites,  and on account  of  enforced hierarchies  of  social  stature and  

worth, will never again acknowledge as a teacher, a person who will say  

that he will teach only members of this group, and not that group. To each  

and every group, and to each and every individual in those groups, we  

promised  that  never  again  would  we  allow  social  circumstances  of  the  

groups  they  belonged  to  be  a  factor  in  our  assessment  of  their  social  

worth. We gave our people the hope that we, the upper crust of India will  

change,  and  that  their  patience  and  tolerance  of  our  inhumanity,  over  

many millennia in the past and for a few decades more into the future, will  

soon be rewarded by our humanization. 1 The Argumentative Indian – Writings on Indian History, Culture and Identity, Picador (2006)  

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History says, Don’t hope On this side of the grave, But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme.2

5. We formed our nation-state to make sure that hope and history, as  

an actuality of experience of our people – all of our people, belonging to all  

of the groups into which they belonged to – would indeed rhyme. That is  

what our Constitution promises. And that is the motive force that informs  

the basic structure of our Constitution. Our fealty to that motive force is as  

sacred a promise that we as a nation have ever made to ourselves. Every  

other commitment can be assessed only on the touchstone of that motive  

force that balances hope and actuality of history, with hope progressively,  

and rapidly, being transcribed into actuality of real equality.

6. In contrast to the above, a strange interpretation has been pressed  

upon us in this instant matter. On the one hand it is contended that the  

State has to be denied the power to achieve an egalitarian social order and  

promote social justice with respect to deprived segments of the population,  

by imposing reservations on private unaided educational  institutions,  on  

the  ground  that  this  Court  has  held  that  private  non-minority  unaided  

educational  institutions  cannot be compelled to select  students of  lower  2 Seamus Heaney, The Cure at Troy: A Version of Sophocles’ Philoctetes, (London Faber and Faber, 1991); cited  in Sen, Amartya, The Idea of Justice (Allen Lane, 2009).

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merit as defined by marks secured in an entrance test, notwithstanding the  

fact  that  the  State  may  have  come to  a  rational  conclusion  that  such  

underachievement is on account of social, economic or cultural deprivations  

and consequent  denial  of  admissions  to  institutions  of  higher  education  

deleterious  to  national  interest  and  welfare.  On  the  other  hand  it  is  

contended  that  private  unaided  non-minority  educational  institutions,  

established by virtue of citizens claimed right to the charitable occupation,  

“education”,  an  essential  ingredient  of  which  is  the  unfettered  right  to  

choose who to admit, may define their own classes of students to select,  

notwithstanding the fact that there may be other students who have taken  

the same entrance test and scored more marks. It would appear that we  

have now entered a strange terrain of twilight constitutionalism, wherein  

constitutionally mandated goals of egalitarianism and social justice are set  

aside,  the  State  is  eviscerated  of  its  powers  to  effectuate  social  

transformation, even though inequality is endemic and human suffering is  

widely extant particularly amongst traditionally deprived segments of the  

population,  and  yet  private  educational  institutions  can  form their  own  

exclusive communes for the imparting of knowledge to youngsters,  and  

exclude all  others, despite the recognized historical  truth that it is such  

rules of exclusion have undermined our national capacity in the past.

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7. The  main  issues  that  present  themselves  to  us  in  these  matters  

before us relate to the following:  

(1) Can the executive abrogate a legislatively mandated and specified  

social justice program in the field of education?  

(2) Do private non-minority unaided professional educational institutions  

have  the  right  to  pre  define  a  social  group  and  admit  into  their  

institutions  from  only  those  social  groups  and  exclude  all  other  

students the opportunity of being considered for admission into such  

educational institutions?  

It is against the background of the ark of hope that our Constitution is, that  

we have to answer the above questions.

II

Facts of the Case:

The Private Non-Minority Unaided Professional Educational Institution

8. The private educational institution, started and managed by the Army  

Welfare  Education  Society  (“AWES”),  named  Army  College  of  Medical  

Sciences (“ACMS”), located in the National Capital Territory of Delhi (“NCT  

of  Delhi”),  seeks  to  admit  only  students  who  are  wards  or  children  of  

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current  and  former  army  personnel  and  widows  of  army  personnel  

(henceforth,  we  will  be  referring  this  entire  group  as  “wards  of  army  

personnel” for ease of use).

9. AWES, it is stated, is a charitable trust that has been set up to cater  

to the educational needs of   wards of Army personnel, both current and  

former, and widows of Army personnel. It is stated that the operation of its  

educational institutions is funded purely from regimental funds, which have  

been recognized to be private funds and not that of the Indian Army. AWES  

was given on lease, an extent of a little over 25 acres of land in the NCT of  

Delhi under the control and possession of Ministry of Defence in order to  

enable it to start ACMS, and meet the regulatory requirement regarding  

extent of land that a private medical college ought to have for its college  

campus. In addition, ACMS has also been provided the facility of using the  

Army Hospital in NCT of Delhi, both for its scholars to fulfill the necessary  

clinical  training  at  such  an  hospital,  and  also  to  fulfill  the  regulatory  

requirement that a medical college possess access to a general hospital of  

sufficient number of beds as assurance of availability of facilities to meet  

the curricular requirements.  

10. It  is  also  stated  that  the  wards of  army  personnel  suffer  from  

extensive disadvantages that children of the regular civilian population do  

not face. It is of course well recognized that army personnel are, by the  

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very nature of their job, deputed to serve in various inhospitable terrains,  

or in regions with scant facilities. Such assignments imply non-availability  

of proper educational facilities for their wards in large periods of the critical  

growing periods of the children. Further, in order to facilitate the education  

of  the children,  personnel  of  army are also  compelled to maintain  dual  

homes, where the member of the army personnel is in one place, and his  

family  resides  in  another  place.  This  places  tremendous  economic  

hardships, which could be conceived as also imposing hardships in being  

able to secure any special coaching or training for the children. Further, the  

absence of the father figure could also imply a certain imbalance in family  

lives. All these contribute to lowered educational attainments of wards of  

army  personnel,  relative  to  the  civilian  population,  and  hence  lowered  

performance in qualifying examinations for various educational institutes at  

the college level, particularly the professional colleges. It is also contended  

that the seats reserved for Defence personnel, at college level, also do not  

satisfy the needs of children and army wards because of paucity of total  

seats and stringent domicile requirements enacted by State legislatures.

The  admission  policy  of  the  private  non-minority  unaided  professional  educational institution.

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11. ACMS, in the year 2008, began to admit students. It sought to do  

this by a set of rules framed by itself, and which may be briefly stated as  

follows:  

(a) That only those students who have the relevant qualifying high school  

education and who have taken the common entrance test conducted by  

appropriate  authorities  for  admission  to  medical  colleges  in  the  NCT of  

Delhi, and have secured the minimal qualifying marks in such a test, shall  

be eligible to apply to ACMS;  

(b)  Of  the students  satisfying (a)  above,  only  those who are wards  or  

children  of  former  and  current  army  personnel  and  widows  of  army  

personnel (including those who have died in service) shall be eligible for  

admission;  

(c)  that  within  the  group  of  students  satisfying  conditions  (a)  and  (b)  

above, admission based on strict inter-se ranking, based on marks secured  

in the common entrance test shall be followed for admitting students; and

(d) there shall not be any distinction whatsoever, on the basis of social,  

economic or cultural background amongst the group comprising the wards  

of army personnel.

The relevant laws of the affiliating university and the State Government   applicable  to  private  unaided  non-minority  professional  educational  institutions.

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12. At this preliminary stage it would appear that the admission policy of  

ACMS to have been undertaken in the teeth of two different sets of laws  

which are applicable: (a) the State act, “Guru Gobind Singh Indraprastha  

University Act, 1998” (“GGSIU Act 1998”) that led to the establishment of  

the  university  granting  affiliation  to  ACMS,  the  Guru  Gobind  Singh  

Indraprastha  University  (“GGSIU”),  and  the  various  ordinances  

promulgated by the Board of Management (“BoM”) of GGSIU; and (b) the  

“The Delhi Professional  Colleges or Institutions (Prohibition of Capitation  

Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other  

Measures to Ensure Equity And Excellence) Act,  2007 (“Delhi  Act 80 of  

2007”). The relevant portions of the applicable laws are reproduced below.

Section 6 of GGSIU Act, 1998 provides as follows:

“(1) The University shall be open to persons of either sex  and of whatever race, creed, caste or class, and it shall not  be lawful  for  the University  to adopt  or  impose on any  person any test whatsoever of religious belief or profession  or political opinion in order to entitle him to be appointed  as a teacher of the University or to hold any office therein  or  to be admitted as a student  of  the University,  or  to  graduate  thereat,  or  to  enjoy  or  exercise  any  privilege  thereof;

(2) Nothing in this section shall be deemed to prevent the  University  from  making  any  special  provision  for  the  appointment  or  admission  of  women  or  of  persons  belonging to  the weaker  sections  of  the society,  and in  

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particular, of persons belonging to the Scheduled Castes  and the Scheduled Tribes.”

13. The Board of Management of GGSIU, pursuant to Sections 27 and  

6(2)  of  GGSIU  Act,  1998,  enacted  Ordinance  30;  vide  Board  of  

Management  Resolution  No.  31.5  dated  August  25,  2006,  entitled  

Reservation Policy for the Self-Financing Private Institutions affiliated with  

the  Guru  Gobind  Singh  Indraprastha  University.  The  said  Ordinance  30  

states that “for making special provisions for the advancement of weaker  

sections  of  the  society,  and  in  particular  of  persons  belonging  to  the  

Scheduled Castes and Scheduled Tribes” certain percentage of seats shall  

be reserved by every affiliated college. The reservations were as follows:  

(i)  Scheduled Castes (15%); (ii)  Scheduled Tribes (0.5%); (iii)  Defence  

Category (5%); (iv) Physically Handicapped (3%); and (v) Supernumerary  

Seats  for  Kashmiri  Migrants  (one  seat).  The  said  reservations,  it  is  

explicitly acknowledged were being provided for pursuant to Clause 5 of  

Article 15 of the Constitution, which was inserted by Constitution (Ninety  

Third  Amendment)  Act,  2005,  which  became  effective  on  20-1-2006.  

Ordinance 30 of GGSIU also specifically left out educational institutions that  

are  owned  by  minorities  from being  subject  to  the  reservations  policy  

enunciated by it.

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14. In  addition  to  the  above,  as  is  the  norm in  rest  of  the  Country  

wherein educational institutions are subjected to the laws of the legislature  

with  territorial  jurisdiction  in  which  such  educational  institutions  are  

located, ACMS is also subject to the laws of the NCT of Delhi, the territorial  

jurisdiction  in  which  ACMS is  located.  In  particular  the  applicable  laws  

would be as cited below.

The preamble of Delhi Act 80 of 2007 states that it is:

“An  Act  to  provide  for  prohibition  of  capitation  fee,  regulation  of  Admission,  fixation of  non-exploitative  fee,   allotment  of  seats   to  Scheduled  Castes,  Scheduled    Tribes  and  other  socially  and  economically  backward  classes  and  other  measures  to  ensure  equity  and  excellence in professional education in the National Capital  Territory of Delhi and for matters connected therewith or  incidental thereto”.

Section 2 of Delhi Act 80 of 2007 provides that:

“The provisions of this  Act shall  apply to – (a) Unaided  institutions affiliated to a University imparting education in  degree, diploma and certificate courses.”

Section 12 of Delhi Act 80 of 2007 provides that:

“Allocation and Reservation of Seats:

(1) In every institution, except the minority institution -

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(a) subject to the provisions of this Act; ten percent of  the  total  seats  in  an  unaided  institution  shall  be  allocated as management seats;

(b) eighty  five  percent  of  the  total  seats,  except  the  management  seats,  shall  be  allocated  for  Delhi  students and the remaining fifteen percent seats for  the outside Delhi students or such other allocation as  the  Government  may  make  by  notification  in  the  official Gazette, direct;

(c) supernumerary  seats  for  non-resident  Indians  and  any other category shall be as may be prescribed.

(2) In  the  seats  mentioned  in  sub-section  (1),  an  institution shall reserve-

(a) seventeen percent seats for the candidate belonging  to the Scheduled Castes category, one percent seats  for the candidates belonging to the Scheduled Tribes  category and such percentage of seats, for any other  category including other Backward Classes as may  be prescribed;

(b) for  seats  not  mentioned  as  allocated  for  Delhi  students in sub-section (1), fifteen percent seats for  candidates  belonging  to  the  Scheduled  Caste  category,  seven  and  a  half  percent  seats  for  the  candidates  belonging  to  the  Scheduled  Tribes  category and such percentage of seats, for any other  category as may be prescribed.

(c) Subject  to clause (a) and clause (b)  above,  three  percent  seats  for  persons  with  disabilities  as  provided  in  the  Persons  with  Disabilities  (Equal  Opportunities  Protection  of  Rights  and  Full   Participation)  Act,  1995  (1  of  1996)  and  such  percentage  of  seats  for  the  wards  of  defence  personnel  an  any  other  category,  as  may  be  prescribed.”

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15. Further,  Delhi  Act 80 of 2007 also provides in Section 13 that all  

institutions “shall,  subject to the provisions of this Act, make admission  

through  a  common  entrance  test  to  be  conducted  by  the  designated   

agency, in such manner, as may be prescribed”, and in Section 14 that any  

“admission made in contravention of the provisions of this Act, or the rules   

made thereunder, shall be void.”

16. However,  ACMS based  its  admission  policy  on  certain  exemptions  

granted by the Government of Delhi exempting ACMS’ admissions from the  

operation of provisions of Delhi Act 80 of 2007 with respect to allocations,  

as  between Delhi  and  non-Delhi  students,  reservations  as  mandated  in  

Sub-section (2) of Section 12, and the requirement that all admissions, in  

such reserved categories and with respect to remaining seats, be based on  

inter-se merit as determined by marks secured in the common entrance  

test.   Such  exemptions  it  is  claimed  have been granted  in  exercise  of  

powers allegedly provided in Clause (b) of Sub-section (1) of Section 12 of  

the Delhi Act 80 of 2007. The said exemption specifically allowed ACMS to  

admit only wards of army personnel in accordance with ACMS’s admission  

policy  earlier  noted  herein.  One  of  the  peculiar  aspects  of  the  granted  

exemption seems to be that ACMS is mentioned to be the “Army” in the  

notification.

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17. The  admission  policy  of  ACMS  was  challenged  in  a  slew  of  writ  

petitions. The writ petitioners, students who otherwise would be eligible to  

be  considered  for  admission  to  ACMS,  and  Indian  Medical  Association,  

challenged the above admission policy in writ petitions filed in the Delhi  

High Court inter-alia contending that: (1) TMA Pai Foundation v. State of  

Karnataka3, as further explained in P.A. Inamdar v. State of Maharashtra4,  

specifically mandated that all admissions to private unaided non-minority  

professional institutions be only based on merit, which is to be taken as  

inter-se ranking of all the students who have taken the common entrance  

test; (2) even according to the rules and regulations of GGSIU or the Delhi  

Act 80 of 2007, they would have secured an admission in ACMS if it had  

followed the principle of inter-se ranking, based on marks secured in the  

common entrance test, of all the students applying to ACMS if ACMS had  

not proscribed all non-wards of army personnel from applying; and (3) in  

fact ACMS is an aided educational institution, in as much as it has received  

massive aid from the State, in the form of expensive land and access to  

Army Base Hospital in Delhi to meet the curricular requirements of clinical  

training in a general hospital that is required by every medical college, per  

regulations of the Medical Council of India.  

18. In this regard, the defence of ACMS, and its parent society, AWES, in  

the  High  Court  has  been  that  the  exemptions  granted  to  it  by  the  

3 (2002) 8 SCC 481 4 (2005) 6 SCC 537

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Government of Delhi were lawful, and hence they were well within the law  

in admitting students only from the wards of army personnel as identified  

by its admission policy. Further ACMS, and AWES, also claim that in any  

event the ratio of TMA Pai, as further explained by P.A. Inamdar, is that,  

contrary  to  what  the  writ  petitioners  were  claiming,  they  have  an  

unfettered  right,  under  Article  19(1)(g),  to  choose  its  own  pre-defined  

“source” of students. Further, ACMS and AWES claim that in as much as  

such a choice is not a “reservation” per se, but only choice of “source” as  

rightly  recognized  by  TMA Pai  (supra),  and  P.A.  Inamdar  (supra),  and  

further  because such a source is  only  being delineated on the basis  of  

occupation and not on the basis of religion, race, caste, sex or place of  

birth or any of them, and inter-se ranking within the “source” is based on  

qualifying marks in the common entrance test, and the admission policy is  

otherwise  transparent,  fair  and  non-exploitative  the  admission  policy  of  

ACMS ought to be upheld. In addition, it is also submitted that in as much  

as  wards  of  army  personnel  suffer  educational  disadvantages,  in  

comparison with the civilian population, and this affects the morale of army  

personnel, it would be in the national interest to allow ACMS and AWES to  

effectuate such admissions. Further, it is also claimed that such a right has  

been recognized previously by the courts in India. Further, with respect to  

it being an unaided educational institution, it was argued that ACMS is run  

purely out of regimental funds that have been held to be private funds, and  

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not belonging to the Indian Army. Moreover, it is also claimed that the  

lease granted to it  by the Army and the Ministry of  Defense, in whose  

possession  the  public  land,  was  for  an  initial  period  of  thirty  years,  

extendable to ninety nine years, to which effect the Ministry of Defense has  

“in principle” agreed to. Moreover, the access to Base Hospital of the Army  

in NCT of Delhi was only for a temporary period, and that an exclusive  

hospital for ACMS would soon be built. To this extent it was submitted that  

ACMS is not an “aided institution” under Delhi Act 80 of 2007 as its day to  

day funds are met through fees and regimental funds. Further, it was also  

submitted that MCI has accepted the temporary arrangements with respect  

to hospital facilities, and has granted a conditional permission, which could  

be revoked if ACMS fails to meet the requirement of having its own hospital  

as required by regulations.

19. It  appears  that  neither  the  writ  petitioners  nor  ACMS and  AWES  

sought to challenge the Constitutional validity of Delhi Act 80 of 2007 or of  

Ordinance 30 of GGSIU. It would appear that both parties proceeded under  

the assumption  that  Delhi  Act  80 of  2007 and Ordinance 30 of  GGSIU  

would be applicable but for exemptions granted by Government of Delhi.  

This  train  of  thought  seems to  have also  affected the  decisions  of  the  

learned Single Judge and the Division Bench of the High Court of Delhi,  

which decisions we broadly summarise below.

19

The learned single judge found that the claimed power to exempt, by  

the Government of Delhi, under clause (b) of Sub-section (1) of Section 12  

of Delhi Act 80 of 2007 to be applicable as regards only the 15% of seats  

remaining  after  the  seats  allocated  to  management  quota.  Thereupon,  

using various rationale, including the judgments of this Court in TMA Pai,  

P.A. Inamdar, and Islamic Academy of Education v State of Karnataka5,  

engaged in an astonishing sequence of logic that twisted and turned, and  

finally  found  that  79% of  the  seats  could  be  filled  by  wards  of  Army  

personnel, and the remaining 21% by students belonging to the general  

category.  The  legislatively  mandated  allotment  of  seats  for  various  

reserved  categories,  including  but  not  limited  to  Scheduled  Castes  and  

Scheduled Tribes, was completely ignored.

On  appeal  by  both  sides,  the  Division  Bench  embarked  upon  a  

different mode of reasoning. In the first instance it held that the enactment  

of Delhi Act 80 of 2007, implies that Ordinance 30 of GGSIU has lost its  

relevance.  Further,  analyzing  Section  12  of  Delhi  Act  80  of  2007,  the  

Division Bench found that there is nothing in it that prohibits ACMS and  

AWES to admit only wards of army personnel in all its seats, the Division  

Bench upheld the admission policy of ACMS. In this regard, the Division  

Bench also over-ruled the finding of learned Single Judge that the ratio of  

5 (2003) 6 SCC 697

20

TMA Pai (supra)as explained in P.A. Inamdar(supra), implied that ACMS  

needs to admit a “sprinkling” of students from the general category.  

It is against the judgment of the Division Bench that appeals by way  

of special leave petitions have been filed.  

III

The Submissions of the Appellants:

20. The learned Counsel for Appellants, Dr. Aman Hingorani, submitted  

that ACMS is not an unaided institution, and further it is also posited that  

ACMS and its parent society be construed to be an “instrumentality of the  

State” under Article 12. To this effect the following facts were pointed out:  

(i) that a little over 25 acres extent of expensive land has been given on  

lease by Ministry of Defence, Union of India, in the Cantonment of Delhi;  

access has been provided to the Base Hospital; and further that affairs of  

AWES  and  of  ACMS  are  substantially  and  wholly  managed  by  regular  

officers of the Indian Army and headed by the Chief of Army Staff; and (ii)  

that regulations of Medical Council of India (“MCI”) do not permit grant of  

permission for setting up of medical colleges unless the Society setting up  

such a college owns such land and has its own hospital of requisite number  

of beds, and further that the permission was granted by MCI on the ground  

21

that ACMS was in fact a governmental entity. It was contended that in such  

an event,  the  admissions to  ACMS ought  to  be on the same principles  

followed by the Armed Forces Medical College, Pune. It is also contended  

that even if ACMS be deemed to not be an instrumentality of the State, it  

could not be construed as an unaided institution, on account of the massive  

aid by Ministry of Defence, merely because its day to day expenses are  

taken care of by fees from students and regimental funds. The implication  

pressed by Dr. Hingorani was that, in such a case Delhi Act 80 of 2007  

would not be applicable at all, as it is intended to be applicable to unaided  

private professional institutions, and furthermore the exemptions granted  

by the Government of Delhi from the operation of Delhi Act 80 of 2007,  

and relied on by ACMS and AWES, in making the admissions in the manner  

it  has  would  also  not  be  applicable.  The  applicable  law,  consequently,  

would be Ordinance 30 of GGSIU, which provides that an upper limit on  

reservations to be 5% for wards of defense personnel.

21. The learned Counsel for the Appellants also contended that, even if  

ACMS were  deemed  to  be  both  a  private  and  an  unaided  professional  

institution, the exemption granted by Delhi Government in allowing ACMS  

to admit only wards of Army personnel to 100% of its seats is ultra vires.  

In this regard it was pointed out that sub-section (2) of Section 12 of Delhi  

Act  80  of  2007  vide  clause  (a)  provides  for  specified  reservations  for  

22

Scheduled Castes and Scheduled Tribes, and further, through rules enacted  

pursuant  to  Section  23(g),  the  Government  of  Delhi  has  fixed  the  

percentage of reservations for wards of Defence personnel, as enabled by  

clause (c) of Sub-section (2) of Section 12, at 5%. It was contended that  

there is no provision in Delhi Act 80 of 2007 that allows Government of  

Delhi  to grant  the exemption from the operation of  the requirement of  

merit  based  admissions,  i.e.,  ranking  based  on  marks  secured  in  the  

common entrance test, from within the entire class of students who have  

qualified  in  the  common  entrance  test  and  from  the  operation  of  the  

reservations as provided therein.  Further, it was also pointed out that the  

power being claimed, vide clause (b) of  Sub-section 1 of Section 12 of  

Delhi Act 80 of 2007, by Government of Delhi to grant such an exemption  

is only the power to vary the percentage of allocable seats as between  

Delhi and non-Delhi students, and not to allocate all the seats in ACMS to  

wards of Army personnel. Moreover, it was also contended that in as much  

as  private  unaided  educational  institutions  are  essentially  rendering  

services that the State ought to be rendering, and wherein such services  

are “public services,”  admitting only wards of Army personnel in all  the  

seats in ACMS would be a violation of Article 14 and Article 15.

22. In  this  regard,  it  was  also  argued  by  Dr.  Hingorani  that  even  

reservations  cannot  be  to  the  extent  of  100%,  in  as  much  as  such  

23

reservations would amount to a violation of Article 14, and in any event  

any reservations with respect of constitutionally permissible classes would  

need statutory or executive provision. In the event, the permission granted  

by  Government  of  Delhi  to  allow  ACMS  to  admit  only  wards  of  Army  

personnel amounts to a super-reservation and violates Article 14.

23. It  was  also  argued  by  the  learned  Counsel  that  the  grant  of  

permission  to  ACMS,  to  admit  only  wards  of  Army  personnel,  without  

regard to the claim of those students who have secured more marks would  

be a violation of the ratio of TMA Pai, as explained in Islamic Academy, and  

P.A. Inamdar.  The learned counsel submitted that the Constitution Bench  

in Islamic Academy, in the course of interpreting Para 68 of the TMA Pai  

judgment, held that the percentage of seats that the management of an  

educational institution can fill up, could never be 100%. In this regard, it  

was also contended that this Court, in P.A. Inamdar, was only trying to  

ascertain  whether,  after  TMA  Pai,  the  State  could  impose  its  own  

reservation  policy  on  private  unaided  professional  colleges.  It  was  

submitted by the learned Counsel, that while P.A. Inamdar has held that  

imposition  of  reservations  by  the  State  would  be  an  unreasonable  

restriction  when  imposed  on  non-minority  private  unaided  educational  

institutions, it cannot be said that P.A. Inamdar stands for the proposition  

that  private  non-minority  private  unaided  professional  educational  

24

institutions could select students from a pre-defined group from within the  

entire general category, thereby disregarding the students in the general  

category who have received higher marks. Apart from that, the holding in  

Islamic Academy that a quota that can be filled up by the management at  

its sole discretion could never be to the extent of  100%, has not been  

overruled by P.A. Inamdar. Consequently, it must be taken that the ratio in  

Islamic Academy holds the field with regard to such questions. It was also  

further  contended  that  this  Court  in  P.A.  Inamdar  has  held  that  

professional colleges stand on an entirely different footing, and that the  

requirement  that  admissions  strictly  be  on  the  basis  of  merit,  as  

determined by marks in a common entrance test, in fact takes precedence  

over  other  considerations  including  the  rights  of  managements  of  

professional unaided non-minority colleges to select students according to  

their choice.

24. The learned Counsel while conceding that wards of Army personnel  

may  form  a  constitutionally  permissible  class  entitled  to  horizontal  

reservations under Article 15(1); nevertheless, relying on D.N. Chanchala  

v. State of Mysore6 it was argued that such a horizontal reservation ought  

to be kept at the least level possible, so that it does not whittle competitive  

selection in the general category completely. In this regard it was pointed  

out that horizontal reservations, even for 18.49 million disabled, forming  

6 (1971) 2 SCC 293

25

1.8% of  India’s  population,  is  only  3%.  In  any  event,  wards  of  Army  

personnel already enjoy a wide variety of preferential treatments, including  

reservations  across  the  country,  as  a  part  of  reservations  provided  to  

wards of all Defence personnel. In the instant case 5% reservations are  

provided for wards of Defence personnel, under Ordinance 30 of GGSIU,  

and also pursuant to the rules of Delhi Government, pursuant to Section  

23(g)  of  Delhi  Act  80 of  2007 and the power  granted  by the enabling  

provisions  in  clause  (c)  of  Sub-section  (2)  of  Section  12.  To  grant  an  

exemption  in  favour  of  ACMS,  in  contravention  of  specific  statutory  

provisions,  and  to  the  exclusion  of  all  other  constitutional  claimants  to  

special treatment, as also the claim of general students to equality, would  

violate the discipline imposed by Articles 14 and 15 of the Constitution.

The Submissions of the Respondents:

25. Learned Senior Counsel, Mr. K.K. Venugopal, and Mr. Jaideep Gupta,  

appearing for the Respondents, dispute the contentions of the Appellants  

that ACMS is an instrumentality of the State, and also further dispute that  

ACMS is an aided institution. Pointing to the fact that AWES is a charitable  

trust, set up purely with the object of promoting the welfare of wards of  

Army personnel, and the fact that only regimental funds are used in day to  

day affairs of ACMS, it was contended that AWES and ACMS ought not to  

be treated as an instrumentality of the State. It was also further contended  

26

that in both the decisions of the High Courts, by the learned Single Judge  

and the Division Bench, ACMS has been found to be an unaided educational  

institution, per the definition of such institutions in Delhi Act 80 of 2007,  

and hence ought not to be disturbed. Further, it was also submitted that  

ACMS conducted its  admissions  on the  basis  of  exemptions  granted  by  

Government of Delhi, and as such meet the statutory requirements also.

26. Learned  Senior  Counsel,  Mr.  K.K.  Venugopal  submitted  that  

admissions being effectuated by ACMS ought to be recognized as being  

based purely on inter-se merit i.e., marks received in common entrance  

test by wards of Army personnel and that no reservations of seats were  

being  made  on  the  basis  of  caste,  race,  religion,  residence/domicile,  

backwardness  or  any  such  criteria.  Tracing  the  history  of  the  law  as  

applicable  to reservations and admissions to colleges,  in  case law from  

Unnikrishnan J.P. v. State of A.P.7, through TMA Pai, Islamic Academy, to  

finally P.A. Inamdar, he submitted that P.A. Inamdar holds the field, in as  

much as it over-ruled parts of Islamic Academy, and explained the eleven  

judge bench decision of this court in TMA Pai. His main contention was that  

this court in P.A. Inamdar has found that a private unaided non-minority  

educational  institution  is  entitled,  under  sub-clause (g)  of  clause (1) of  

Article  19,  to  the  same rights  as  a  private  unaided minority  institution  

under Clause (1) of Article 30: i.e., in as much as minorities have the right  

7 (1993) 1 SCC 645

27

to choose students entirely from a “source” of their choice, non-minorities  

should also have the same right to be able to pre-define a source from the  

general  pool  and admit  qualified students only from such a pre-defined  

source.  In  particular  he  relied  on paras  127 and 137 of  P.A.  Inamdar.  

Specifically he relied on the following observation in para 127: “Nowhere in  

Pai Foundation either in the majority or in the minority opinion, have we  

found  any justification for imposing seat-sharing quota by the State on  

unaided private professional educational institutions and reservation policy  

of  the State or State quota or  management seats.” The learned Senior  

Counsel  submitted  that  according  to  P.A.  Inamdar  only  a  consensual  

agreement  can  be  arrived  at  between  private  unaided  professional  

institutions  regarding  seat  sharing,  and  the  State  could  not  unilaterally  

demand any such sharing. In this regard, the learned Senior Counsel was  

equating  the  demand  by  the  Appellants  that  the  State  should  permit  

admissions to professional unaided non-minority professional colleges only  

on the basis of marks secured in the common entrance test to a demand  

by  the  State  of  a  “quota”  of  seats  by  the  State  for  imposition  of  

reservations or for that matter any other purpose. Further, given the issues  

faced by Army personnel, it was submitted that a larger public interest is  

involved in the armed forces personnel having comfort and security that  

their  wards  can  get  a  fair  opportunity  for  securing  admissions  into  

professional colleges.

28

27. The learned Senior Counsel, Mr. Jaideep Gupta contended that the  

right to set up educational institutions, whether minority or non-minority,  

pursuant to sub-clause (g) of clause (1) of Article 19, includes the right to  

admit students of their choice from a “source” within the general pool, so  

long as the procedure adopted is transparent, fair and non-exploitative. As  

far as merit is concerned, it would then be that so long as inter se merit  

within that “source” is concerned, the State ought not to have the power to  

insist  that  as  far  as  non-minority  educational  institutions  only  select  

students from the entire general pool on the basis of marks secured on the  

common entrance test.  He also contended that the admission policy of  

ACMS, in choosing to admit eligible wards of Army personnel in all of its  

seats, is an instance of selecting a “source” and not a reservation at all. To  

this extent he also submitted that where a particular class is a source of  

admission, the principles relating to reservations would not apply to the  

same where, the class itself is well defined and rational. The learned Senior  

Counsel,  Mr.  Jaideep Gupta  submitted  that  this  Court  in  P.A.  Inamdar,  

interpreting TMA Pai, has held that the essential ingredients of freedom of  

management  of  private  non-minority  unaided  educational  institutions  

include the right to admit students and recruit staff, and determine the  

quantum of fee to be charged, and that they cannot be regulated, either  

with  respect  to  minority  or  non-minority  educational  institutions.  In  

29

addition he also submitted that Clause (5) of Article 15, inserted by the  

93rd Constitutional (Amendment) Act, 2005, in so far that it enables special  

provisions  by the State with respect  to admission of  Scheduled Castes,  

Scheduled  Tribes  and  Socially  and  Educationally  Backward  Classes  in  

private  non-minority  unaided institutions,  would be unconstitutional  and  

violative of the basic structure of the Constitution. In particular he relied on  

the sole opinion of Bhandari J., in Ashoka Kumar Thakur v. Union of India8  

that enabling provisions of clause (5) of Article 15, in so far as they relate  

to private non-minority unaided educational institutions, to be violative of  

basic structure of the Constitution, and argued that we adopt the same  

rationale and conclusions.  

IV

28. Based on the facts,  the decision of the High Court,  the applicable  

laws, the affidavits of the Medical Council of India & Government of Delhi  

and the submissions  made before  us  by the Counsel  appearing for  the  

parties,  we now turn to frame the questions  to  be answered.  It  would  

appear that there are two sets of issues that need to be addressed. The  

first would be a preliminary set of issues, wherein the question of whether  

ACMS  is  an  instrumentality  of  the  State  or  an  aided  institution  or  an  

unaided  institution  would  have to  be  answered,  so  that  we could  then  

determine  which  laws  would  be  applicable.  As  argued  by  the  learned  8 (2008) 6 SCC 1

30

Counsel for Appellants, the Delhi Act 80 of 2007 would be applicable with  

respect  to  the  matters  on  hand,  if  ACMS  is  an  unaided  non-minority  

educational institution. If that be the status of ACMS, then we’d have to  

next consider whether the exemptions granted by the Delhi Government  

are valid.

29. It is also noted that at no stage of the proceedings, whether before  

the  High  Court  or  in  this  court,  have  the  Respondents  challenged  the  

constitutional  validity  of  Delhi  Act  80  of  2007,  and  specifically  the  

allocations and reservations as mandated by Section 12 therein. The said  

Act  was  enacted,  after  the  93rd Constitutional  (Amendment)  Act,  2005  

inserted clause (5) of Article 15 into the Constitution. Both the Title and the  

Preamble of Delhi Act 80 of 2007 specifically state that it was an Act to  

ensure  equity  for  Scheduled  Caste,  Scheduled  Tribes  and other  weaker  

segments  of  the  population.  Consequently,  clause  (5)  of  Article  15’s  

enabling provisions with respect to making “special provisions” in regard to  

admission  of  Scheduled  Castes,  Scheduled  Tribes,  and  Socially  and  

Educationally  Backward  Classes  to  private  unaided  non-minority  

educational institutions would extend a protective umbrella with regard to  

allocations and reservations in Section 12 of Delhi Act 80 of 2007. If we  

find below that it is Delhi Act 80 of 2007 which is applicable, and further  

find that the exemptions granted by Delhi Government to be invalid, then  

31

provisions of Delhi Act 80 of 2007 with respect to reservations would have  

to apply with the full force that they were intended to be.

30.  Only thereafter, would it be logical to proceed to examine whether  

the  interpretations  urged  by  the  Appellants,  or  the  Respondents,  with  

regard to decisions of this Court in TMA Pai, P.A. Inamdar, and Islamic  

Academy, that would apply with respect to seats that are unaffected by  

reservations specified in sub-section (2) of  Section 12 and allocation of  

seats, as between Delhi and non-Delhi students, specified in sub-section  

(1)  of  Section  12  of  the  said  Act.  It  is  to  be  noted  that  the  said  Act  

specifically mandates that all admissions to ACMS would have to be made  

in  accordance  with  merit  of  students,  based  on  marks  secured  in  the  

common entrance test. With respect to those students covered by various  

categories  such  as  Scheduled  Castes,  Scheduled  Tribes  and  other  

constitutionally  permissible  classes,  as  delineated  in  Sub-section  (2)  of  

Section 12, and as applicable with respect to categories described in Sub-

section  (1)  of  Section  12,  the  rule  of  inter-se  merit,  based  on  marks  

secured in common entrance test by students falling into each category,  

would apply. That would also mean, then, that with respect to seats not  

covered by provisions of Sub-section (2) of Section 12, they would have to  

be  filled  in  accordance  with  rule  of  merit  based  on  marks  secured  by  

general category of students not covered by Sub-section (2) of Section 12.  

32

If however, the interpretation of the ratio of decision by this Court in TMA  

Pai, as further explained in P.A. Inamdar pressed by the learned Senior  

Counsel appearing for the Respondents turns out to be the correct one,  

then we would have to hold that ACMS has the right to fill all of the seats  

in ACMS not covered by sub-section (2) of Section 12 with wards of Army  

personnel who have qualified in the appropriate common entrance test.

31. In light of the above, we frame the following specific questions:

Preliminary:

1. Is ACMS an instrumentality of the State or an aided institution?

2. If  the  answer  to  Question  1  above  is  no,  then  whether  the  

exemptions granted by Delhi Government are valid?

Substantial:

3. If the answers to both questions 1 and 2 above are no, whether  

ACMS can admit only wards of Army personnel to the seats not  

covered  by  reservations  mandated  by  Delhi  Act  80  of  2007,  

without  any  regard  to  the  merit  of  other  Delhi  or  non-Delhi  

students who may have secured higher marks in the appropriate  

common entrance test?

33

V

Analysis

Preliminary Questions:

Question 1:

32. Is ACMS an instrumentality of the State or an aided institution?

We  note  that  with  respect  to  the  issues  of  whether  ACMS  is  an  

instrumentality of  the State,  and whether ACMS is an aided or unaided  

institution,  that  at  both  stages  of  proceedings  in  the  High  Court,  the  

conclusion reached was that Respondents were neither an instrumentality  

of the State, nor could ACMS be held to be an aided educational institution.  

Such  determinations  always  present  issues  of  fact  and  of  law.  We are  

disinclined to over-rule the findings of the High Court in this regard, which  

also corresponds to the decisions of the learned Single Judge. We are also  

disinclined to go into the said issues primarily because we do not believe  

that  the  fact  that  ACMS  is  deemed  to  be  an  unaided  non-minority  

educational institution would have a bearing on the relief being sought by  

the Appellants.

33. In this light, we also opine that the Division Bench was correct in  

holding that  Ordinance 30 of  GGSIU to  be inapplicable  in  this  case  on  

34

account of enactment of Delhi Act 80 of 2007. This is so, because Delhi Act  

80 of 2007 is a later enactment, much more general, containing a complete  

code covering the entire terrain of admissions of students to professional  

unaided  non-minority  institutions  affiliated  to  all  universities  in  NCT  of  

Delhi, including GGSIU, with specific provisions therein regarding allocation  

of seats between Delhi and non-Delhi students, and reservations applicable  

in  terms  of  those  students  falling  within  constitutionally  permissible  

classes.  However,  the  expression  used  by  the  Division  Bench,  that  

Ordinance 30 has “lost its relevance”: to the extent that it may suggest a  

loss  of  general  relevance is  not  correct.  Considerable  care  ought  to be  

exercised  in  delineating  the  applicability  of  unrepealed  sections  of  a  

previous statute, even if they conflict with the provisions of a later statute  

with respect to some specific terrain of activities.  After all, Ordinance 30 of  

GGSIU  may  be  applicable  with  respect  to  many  other  situations,  not  

involving the terrain covered by Delhi Act 80 of 2007. In this regard it  

would  be  appropriate  to  cite  the  words  of  Mudholkar  J.,  judgment  in  

Municipal Council, Palai v. T.J. Joseph9:

“It  is  undoubtedly  true  that  the  legislature  can  exercise the power of repeal by implication. But it is  equally  well-settled  that  there  is  a  presumption  against an implied repeal. Upon the assumption that  the legislation enacts laws with complete knowledge  of all  existing laws pertaining to the same subject  the failure to add a repealing clause indicates that  the intent was not to repeal existing legislation. This  

9 1963 AIR 1561 = (1964) 2 SCR 87

35

presumption will be rebutted if the provisions of the  new Act are so inconsistent with the old ones that  the two cannot stand together.”

Question 2:

34. In light of the fact that we have decided to proceed on the basis that  

ACMS is a private non-minority unaided professional institution, we now  

turn  to  the  issue  of  the  validity  of  the  exemptions  granted  by  Delhi  

Government  from the operation of Delhi  Act 80 of 2007. By permitting  

ACMS to allocate all its seats to wards of Army personnel, albeit ones who  

had taken and qualified the common entrance test, the Delhi Government  

effectively suspended the operation of the provisions of the Act with regard  

to selection of students solely on merit from the general category, and also  

the provisions that mandated allotment and reservation of seats to various  

constitutionally permissible classes, including but not limited to Scheduled  

Classes and Scheduled Tribes.

35. At the very beginning of this portion of this judgment, we wish to  

make an observation based on the text of both the Cabinet Decision, and  

the Notification of  Government  of  Delhi,  on which reliance is  placed by  

ACMS and AWES to admit only students of Army personnel. The texts state  

that an approval was being granted, in the case of Cabinet Decision, and  

that permission was being granted, in the case of the Notifications, that  

36

hundred percent seats in ACMS may be allocated for “admission towards of  

Army personnel” as per the policy  “followed by” the Indian Army. First  

question that arises is as to how wards of Army personnel could be deemed  

to  be  “Army personnel”?  Did  ACMS and  AWES apply  for  permission  of  

admittance of personnel of the Indian Army and then turn around and use  

the exemption granted to admit “wards of Army personnel”? Or is it the  

case that the Government of Delhi did not apply its mind at all, or that  

applied its mind in the absence of relevant facts? We are perturbed by the  

degree of casualness, evident from above, with which exemptions from the  

operation of vital aspects of a law enacted by the legislature seemed to  

have been undertaken. In any event, we will proceed on the assumption  

that the Government of Delhi intended that the exemption be granted with  

respect to “wards of Army personnel” as opposed to “Army personnel” and  

examine whether the exemptions granted are valid or not.

36. We find that the High Court has erred in its interpretation of Sub-

section (1) of Section 12, and indeed the very thrust of Delhi Act 80 of  

2007.  One of  the cardinal  principles  of  interpretation is  to  look  for  the  

purpose that the Act  seeks to achieve,  and in this  regard what  is  also  

crucial is the relationship of each clause or sub-clause to the other. The  

strict  lexicographical  arrangement  of  sub-clauses,  one  after  the  other,  

37

ought  not  to  be  taken  to  mean  that  the  one  following  is  of  lesser  

importance.

37. Reading Section 12 of Delhi Act of 2007 synoptically, we find that  

Sub-section (2) of Section 12 pervades the entire space of how seats are to  

be  allocated.  In  fact,  the  preamble  to  the  Act,  states  that  it  is  being  

enacted  to  provide  for  “allotment”  of  seats  to  “Scheduled  Castes,  

Scheduled Tribes …….. and other measures to ensure equity and excellence  

in professional education in the National Capital Territory of Delhi” (emph.  

Supp.). Consequently, it must be read that sub-section (2) of Section 12 is  

one of  the primary sections  of  the Act  and that  it  would  act  upon the  

provisions of Sub-section (1) of Section 12. Sub-section (2) of Section 12  

provides that with respect to seats in sub-section (1) of Section 12, an  

institution shall reserve as provided for in sub-sections (a), (b) and (c) of  

sub-section (2) of Section 12 that follow. Clearly the phrase “[I]n the seats  

mentioned  in  sub-section  (1)”   at  the  beginning  of  sub-section  (2)  of  

Section  12  reveals  the  intent  of  the  legislature  that  the  specific  

reservations provided for Scheduled Castes and Scheduled Tribes and other  

provisions that may be made with respect to other weaker segments and  

other permissible categories of  classes,  shall  be applied with respect to  

each and every category of seats identified in sub-section (1) of Section  

12. Looking at sub-section (2) of Section 12 closely, this would mean that  

38

not only are reservation of seats, for instance with respect to Scheduled  

Castes and Scheduled Tribes, to be made with respect to Delhi students,  

non-Delhi students, and also with respect to all students admitted under  

the management quota.

38. Instead of appreciating the primordial importance of sub-section (2)  

of Section 12 of the Delhi Act 80 of 2007, the Division Bench finds that  

there is “nothing in Section 12 of the Delhi Act 80 of 2007 which prohibits   

the appellants from making 100% allocation in favour of army/ex-army  

personnel  and war widows”.  If  indeed that be so, and ACMS admits all  

wards  of  army  personnel  from outside  Delhi,  then  what  exactly  is  the  

status of reservations that have been specifically mandated in sub-section  

(2) of Section 12 of the Act by the legislature of NCT of Delhi with respect  

to Scheduled Castes and Scheduled Tribes and any other Backward Classes  

and other constitutionally permissible classes? Logically in accordance with  

the  interpretation  of  the  Division  Bench,  the  benefits  intended  to  be  

provided to students belonging to various weaker segments and thereby  

achieve greater  social  welfare  through achievement  of  broader  goals  of  

social  justice  by  the  legislature  would  be  obliterated.  This  would  be  

tantamount to grant of powers to set at nought a policy specifically enacted  

by the legislature, thereby turning on its head, as it were, every known  

principle of our constitutional law.  

39

39. Furthermore, by permitting ACMS to admit only students of wards of  

army personnel, notwithstanding the fact there could be others who have  

taken the common entrance test, and have secured more marks than the  

wards of Army personnel,  the exemptions granted by Delhi Government  

also set at naught the legislative intent to ensure excellence by mandating  

that all admissions be made on the basis of inter-se merit within each of  

the  categories  of  students.  The  general  category  would  comprise  of  all  

students who have taken the common entrance test, and other wise satisfy  

the conditions of sub-section (1) of Section 12 of the Delhi Act 80 of 2007,  

after  the  seats  reserved pursuant  to  sub-section  (2)  of  Section  12 are  

reserved  i.e.,  allocated  for  the  described  constitutionally  permissible  

categories  therein.  The said Act  clearly  specifies  that its  objective is  to  

achieve excellence, and one of the methods specified to achieve the same  

is  of  admitting  students  on  the  basis  of  inter-se  merit  in  each  of  the  

categories  specified in  Section 12.  The grant of  permission  to ACMS to  

admit students who may have scored lower marks than others, both within  

the general category and also in the reserved categories, results in defeat  

of the aims, objects and purposes of the Act, and the entire fabric and  

scheme of  the Act  gets frustrated.  Nowhere in the Act  do we find any  

powers granted to the government to not implement the Act. Nor does the  

Act  state  anywhere  that  the  Government  of  Delhi  could  suspend  the  

40

implementation of the provisions with respect to reservations for weaker  

segments, and also simultaneously give the merit of the students scoring  

higher marks than wards of Army personnel a go by. To put it pithily, there  

is no power conferred on Government of Delhi to grant any exemption in  

favour of any institution from the operation of any of the provisions of the  

Act.

40. The Government of Delhi  in its  affidavit  claims that its  powers to  

provide such exemptions also flow from Article 162 of the Constitution. In  

relevant  part  Article  162  states  “[S]ubject  to  the  provisions  of  this  

Constitution the executive power of a State shall extend to the matters to  

which the Legislature of the State has power to make law.” We simply fail  

to see how a Government that claims to be functioning in accordance with  

the Constitution of India, in which democracy has been deemed to be a  

basic feature of the Constitution, can claim the power under Article 162 to  

set at nought a declared, specified and mandated policy legislated by the  

legislature.  In a constitutional  democracy,  with a parliamentary form of  

government, the executive may initiate a policy in a legislative bill to be  

enacted  by  the  legislature  or  in  the  absence  of  legislative  action  in  a  

particular  field,  enact  policy  that  may  be  akin  to  law.  However,  the  

executive has to be answerable to the legislature. That is why it has been  

stated in no uncertain terms, that while we do not follow a strict separation  

41

of powers as in the United States, executive functions have been deemed  

to be what remain after legislative and judicial function have been taken  

away.  (See Ram Jawaya Kapur v.  State of  Punjab10)  Further,  the  cited  

portion of Article 162 has been interpreted by this Court to mean that the  

State Executive has the power to make any regulation or order which shall  

have the effect of law so long as it does not contravene any legislation by  

the  State  Legislature  already  covering  the  field.  (See  State  of  A.P.  v.  

Lavu11) In the instant case, the legislature of NCT of Delhi has specifically  

set out a clear policy with respect to reservations for Scheduled Castes and  

Scheduled Tribes and other weaker sections of the population. The duty of  

the executive is to implement that policy, and not to abrogate it.

41. The  Government  of  Delhi  also  seeks  to  claim  legitimacy  of  the  

decision  by  the  Cabinet  of  Delhi  and  the  Notification  by  Lieutenant  

Governor granting ACMS permission to admit 100% of the seats to wards  

of  army personnel  to  the  text  of  sub-section  (b)  of  sub-section  (1)  of  

Section 12. The interpretation of the said sub-section sought to be pressed  

upon us is as follows: That the first part of said sub-section ought to be  

read as “eighty five percent  of  the total  seats  except the management  

seats, shall be allocated for Delhi students and the remaining 15% percent  

of  seats  for  outside Delhi  students”,  followed by an “or”,  and then the  

10 AIR 1955 SC 549: (1955) 2 SCR 225 11  (1971) 1 SCC 607  

42

second part “such other allocation as the Government by notification in the  

Official  Gazette  Direct”.  Such  an  interpretation  it  is  claimed  gives  the  

government the power to vary the entire allocation of seats, and therefore  

the  exemption  granted  by  it  to  ACMS  to  admit  only  wards  of  Army  

personnel ought to be upheld.  

42. We  simply  fail  to  see  how.  At  best,  even  if  we  were  to  accept,  

arguendo,  the interpretation pressed into service by the Government of  

Delhi, the best result that would follow would be that Government of Delhi  

has been given the power to vary the allocation of seats between Delhi and  

non-Delhi students, belonging to all sections and within the broadest class  

of those who have taken the common entrance test and qualified. It cannot  

be read to mean that a power has been granted to Government of Delhi to  

create  entire  new  classes  of  students  from  within  those  eligible  for  

admission  to  professional  institutions  by  itself,  and  exclude  all  those  

students who are not members of such classes, notwithstanding that they  

may fall in the categories of Delhi or non- Delhi students.

43. Further, we also hold that such an interpretation to be strained. This  

is so for two reasons. One, the fact that the word “and” is always used as a  

conjunction between the first part of a sentence and the second part of a  

sentence, and the word “or” is used to denote an alternative in a series of  

exclusive  arrangements.  Consequently,  we  hold  that  the  correct  

43

interpretation of sub-section (b) of Section 12(1) is as follows: first part -  

“Eighty five percent of the total seats except the management seats, shall  

be allocated for Delhi students” followed by the conjunction “and” and then  

the second part - “the remaining fifteen percent seats for outside Delhi  

students or such other allocation as the Government may by notification in  

Official  Gazette direct.”  Therefore,  it  can only mean that the powers of  

Delhi Government are limited to the extent of varying the percentage of  

seats reserved for non-Delhi students, up to a maximum of 15%. Apart  

from  the  above  grammatical  construction,  we  are  led  to  such  an  

understanding for additional reasons. This is the legislature of Delhi, that is  

legislating for the denizens of NCT of Delhi, with a primary responsibility  

for their welfare. Further, in as much as clause (a) of sub-section (2) of  

Section 12 provides that 17% of seats be reserved for Scheduled Castes,  

1%  of  seats  be  reserved  for  Scheduled  Tribes,  and  an  unspecified  

percentage of seats be reserved for other Backward classes who are also  

denizens of Delhi, the legislature of Delhi would have taken into account  

the  needs  of  Scheduled  Castes  and  Scheduled  Tribes  in  Delhi.  The  

discretion  to  vary  the  15%  reserved  for  non-Delhi  citizens  was  in  all  

likelihood to enable the Government of Delhi to increase the percentage of  

seats allocated to denizens of Delhi,  in the event a sizeable number of  

other backward classes of students also need to be accommodated in the  

professional  colleges  of  Delhi.  By  fixing  a  number,  15%,  for  non-Delhi  

44

students, the legislature intended to set a maximal limit on the number of  

non-Delhi students who could be admitted, and specified the percentage of  

seats that could be allocated to Scheduled Castes, Scheduled Tribes and  

other  weaker  sections  which  could  be  reduced  in  the  event  that  

Government of Delhi needed to accommodate the special exigencies of the  

needs  of  denizens  of  Delhi,  including  but  not  limited  to  its  backward  

classes.

44. The Government of Delhi has also claimed that a distinction needs to  

be drawn between “allocation” as used in sub-section (1) of Section 12  

and “reservation” as used in sub-section (2) of Section 12. The claim of  

Government of Delhi is that the power to “allocate” between Delhi and non-

Delhi students or some other classes is prior to “reservation” of seats as  

between  general  category  of  students,  and  moreover  that  such  an  

allocation would mean a power to allocate all the seats  not just to non-

Delhi students, but even an entirely new class. This plea of Government of  

Delhi is untenable and unsustainable as the same is not supported by any  

of the provisions of the Delhi Act 80 of 2007 and in fact runs counter to  

them. One of primary purposes of the act, the goal that it seeks to achieve,  

is  described  in  terms  of  “allotment”  of  seats  to  Scheduled  Castes,  

Scheduled Tribes and other weaker segments. The word allot, in its verb  

form, is defined by the Concise Oxford Dictionary12 to include the meaning  

12 Eight Edition, Oxford University Press (1990)

45

of the act to give or apportion to, distribute officially to. Allotment is what  

results  from such an act  i.e.,  an apportionment.  The word “reserve”  is  

defined to also include the meaning of “order to be specifically retained or  

allocated for a particular person”, and the word “reservation” is the act or  

an instance of reserving or being reserved. The word “allocate” is defined  

to include the meanings of an act  to assign or devote something for a  

purpose or to a person. Consequently, it can only be surmised that while  

the  words  allocation  was  used  in  the  said  Act  in  the  context  of  

apportionment of seats between Delhi and non-Delhi students, the word  

“reservation” was used to mean to allocate a certain percentage of seats,  

in  both  groups  formed  by  eligible  Delhi  and  non-Delhi  students,  for  

Scheduled Castes, and Scheduled Tribes and other weaker sections of the  

population and other constitutionally permissible classes. The use of those  

two words, allocation and reservation in Section 12, in as much as they  

overlap in their  meaning,  and the fact  that they together delineate the  

seats to be allotted to Scheduled Castes and Scheduled Tribes and other  

weaker sections and constitutionally permissible classes, implies that we  

cannot infer from the use of the word “allotment” in sub-section (1) of  

Section 12, the kind of power claimed to vary allotment in clause (b) of  

sub-section (1) of Section 12 as provided therein and thereby also set at  

naught the intent of legislature of Delhi to allot seats for Scheduled Castes,  

Scheduled  tribes,  and  other  weaker  sections,  and  further,  also  set  at  

46

naught  its  intent  that  at  least  85% of  seats  that  remain  after  10% of  

management seats are set aside, be allocated to students of Delhi, also be  

set at naught. Consequently, the defense by Government of Delhi of the  

exemptions it granted to ACMS, on the use of different words, allotment in  

sub-section  (1)  of  Section  12,  and  reservations  in  sub-section  (2)  of  

Section 12, also fails.

45. Thus we find that the exemption granted by the Government of Delhi  

allowing ACMS to fill 100% of its seats by wards of army personnel violates  

the  basic  principles  of  democratic  governance,  of  the  constitutional  

requirement that executive implement the specific and mandatory policy  

legislated by the legislature, and violates the provisions of Delhi Act 80 of  

2007. In fact, the actions of the Government of Delhi, for the aforesaid  

reasons are wholly  arbitrary,  without any basis  in  law,  and ultra  vires.  

Section  14  of  the  said  Act  specifies  that  any  admission  made  in  

contravention of the provisions of the Act or the rules made thereunder,  

shall  be  void,  and  further  Section  18  provides  that  those  making  

admissions in contravention of the provisions of Delhi Act 80 of 2007 may  

be punished by imprisonment up to three years or a fine up to Rupees one  

Crore  or  both.  Such  provisions  clearly  demonstrate  the  intent  of  the  

legislature that its policy, as specified in the Act, and the purposes of the  

Act, not be derogated from in any manner. The said provisions of the Act  

47

are mandatory in nature. The Government of Delhi has clearly acted on the  

basis of a misplaced belief of its powers, under the Act, a misunderstanding  

of the statutory language of the Act, and its relevant provisions, and also in  

complete contravention of constitutional principles.

46. In light of the above, we have to hold that Delhi Act 80 of 2007, and  

Section 12, including both sub-sections (1) and (2) are clearly applicable,  

with respect to admission of students to ACMS.

VI

Substantive Questions:

Question 3:

47. Whether ACMS can admit only wards of Army personnel to the seats  

not covered by reservations mandated by Delhi Act 80 of 2007, without  

any regard to the merit of other Delhi or non-Delhi students who may have  

secured higher marks in common entrance test?

48. Having resolved the preliminary issues in Part V above, we now turn  

our  attention  to the issue of  whether  ACMS has an unfettered right  to  

define its own source of students with respect to all the seats remaining  

after setting aside the seats for categories of  students covered by sub-

48

section (2) of Section 12, read with sub-section (1) of Section 12 of the  

Act.

49. The main contentions of learned Senior Counsel, Mr. K.K. Venugopal  

and Mr. Jaideep Gupta, have been that the ratio of TMA Pai, as explained in  

P.A.  Inamdar,  stands  for  the  propositions  that  (a)  the  rights  of  non-

minority unaided educational  institutions under sub-clause (g) of  Clause  

(1) of Article 19 are exactly the same as the rights of minority unaided  

educational institutions under Clause (1) of Article 30; and hence (b) non-

minority  professional  educational  institutions,  such  as  ACMS,  should  be  

deemed to have the right  to define their  own “source”  from within the  

general pool of students taking the common entrance test, so long as the  

classification  is  not  based  on  any  of  the  constitutionally  impermissible  

basis’ such as religion, race, caste, place of birth or sex. Further, it was  

also contended that in as much as the admission policy thereafter proceeds  

in a transparent, fair and non-exploitative manner, the admission policy of  

ACMS should be upheld. Additionally it was also submitted by the learned  

Senior  Counsel  that  allowing ACMS to  pursue such an admission policy  

would be in the national interest.

50. At  this  stage  we  wish  to  make  a  necessary  and  a  primordially  

important observation that has troubled us right throughout this case. The  

primordial premise of the arguments by unaided educational institutions in  

49

claiming an ability to choose students of their own choice, in case after  

case before this court, was on the ground that imposition of reservations  

by the State would impede their right to choose the most meritorious on  

the  basis  of  marks  secured  in  an  objective  test.  It  would  appear  that,  

having unhorsed the right of the State to impose reservations in favor of  

deprived segments of the population, even though such reservations would  

be  necessary  to  achieve  the  Constitutionally  mandated  goals  of  social  

justice and an egalitarian order, unaided institutions are now seeking to  

determine their  own delimited “sources” of  students to the exclusion of  

everybody else. The fine distinctions made by learned Senior Counsel, Mr.  

Jaideep Gupta, that an allocation when made by the State is reservation,  

as  opposed  to  allocations  made  by  private  educational  institutions  in  

selecting a source do not relate to the fundamental issue here: when the  

state delimits, and excludes some students who have secured more marks,  

to  achieve  goals  of  national  importance,  is  sought  to  be  projected  as  

contrary  to  Constitutional  values,  and  impermissibly  reducing  national  

welfare by allowing those with lesser marks to be selected into professional  

colleges;  and  at  the  same  time,  such  a  delimitation  by  a  private  

educational institution, is supposedly permissible under our Constitution,  

and  we are  not  then to  ask  what  happens  to  that  very  same national  

interest and welfare in selecting only those students who have secured the  

highest marks in a common entrance test. We are reminded of the story of  

50

the  camel  that  sought  to  protect  itself  from the  desert  cold,  and  just  

wanted to poke its head into the tent. It appears that the camel is now  

ready to fully enter the tent, in the desert, and kick the original inhabitant  

out altogether.  

51. In any case we examine these propositions below, as we are unable  

to  convince  ourselves  that  this  Court  would  have  advocated  such  an  

illogical position, particularly given our history of exclusion of people, on  

various  invidious  grounds,  from  portals  of  education  and  knowledge.  

Surely, in as much as this Constitution has been brought into force, as a  

constitutive document of this nation, on the promise of justice – social,  

economic and political,  and equality – of status and opportunity,  for all  

citizens so that they could live with dignity and fraternal relations amongst  

groups of them, it would be surprising that this Court would have unhorsed  

the State to exclude anyone even though it would lead to greater social  

good, because marks secured in an entrance test were sacrosanct, and yet  

give the right  to non-minority  private educational  institutions  to do the  

same. The knots of legal formalism, and abandonment of the values that  

the Constitution seeks to protect, may lead to such a result. We cannot  

believe that this Court would have arrived at such an interpretation of our  

Constitution, and in fact below we find that it has not.

51

52. It  would  appear  that  both  learned  Senior  Counsel,  Mr.  K.K.  

Venugopal and Mr. Jaideep Gupta are relying on paragraphs 127 and 137  

in P.A. Inamdar to substantiate their claim that all that is needed by ACMS  

is to ensure that their admission procedures are fair, transparent and non-

exploitative. Mr. K.K. Venugopal submits that there can be a consensual  

agreement  between  the  State  and  the  private  unaided  institution,  

regarding seat sharing, but the State cannot unilaterally demand any such  

share. Further, Mr. Jaideep Gupta claims that by admitting only students  

who are wards of army personnel,  on an all  India basis,  what ACMS is  

actually doing is only defining a “source” of students and not reserving any  

seats.

53. We cite some additional paragraphs, including the paragraphs relied  

on  by  learned  Senior  Counsel  from the  judgment  of  this  Court  in  P.A.  

Inamdar to test the above propositions. In particular we cite below paras  

127, 136, 137 and 138: in extenso ( and emph. supp in cited paragraphs):

“127. Nowhere in Pai Foundation either in the majority or   the minority opinion, have we found any justification for  imposing  seat  sharing  quota  by  the  State  on  unaided  private  professional  educational  institutions  and  reservation  of  the  State,  or  State  quota  seats  or   management seats.

136. “Whether minority or non-minority institutions, there  may  be  more  than  one  similarly  situated  institution  imparting education in any one discipline,  in  any State.  The same aspirant seeking admission to take education in  

52

any  one  discipline  of  education  shall  have  to  purchase  admission forms from several  institutions and appear at  several  admission tests conducted at different places on  the  same  or  different  dates  and  ther  may  be  clash  of  dates,  If  the  same  candidate  is  required  to  appear  in  several tests, he would be subjected to unnecessary and  avoidable expenditure and inconvenience. There is nothing  wrong  in  an  entrance  test  being  held  for  one  group  of  institutions  imparting  same  or  similar  education.  Such  institutions situated in one State or in more than one State  may join together and hold a common entrance test or the  State may itself or through an agency arrange for holding  of such test. Out of such common merit list the successful  candidates can be identified and chosen for being allotted  to different institutions depending on the courses of study  offered, and number of seats, the kind of minority to which   the institution belongs and other relevant factors. Such an  agency conducting the common entrance test (“CET” for  short)  must  be  one  enjoying  utmost  credibility  and  expertise in the matter.  This would better ensure the  fulfillment of twin objects of transparency and merit.  CET  is  necessary  in  the  interest  of  achieving  the  said  objectives and also for saving the student community from  harassment  and  exploitation.  Holding  of  such  common  entrance  test  followed  by  centralized  counseling  or,  in  other words, single window system regulating admissions  does  not  cause  any  dent  in  the  right  of  the  minority  unaided educational institutions to admit students of their   choice. Such choice can be exercised from out of the list of  successful candidates prepared at CET without altering the  order of merit inter-se of the students so chosen.”

137.  Pai  Foundation  has  held  that  minority  unaided  institutions can legitimately claim unfettered fundamental   right to choose the students to be allowed admission and  the  procedure  therefore  subject  to  its  being  fair,   transparent  and  non-exploitative.  The  same  principle  applies to non-minority unaided institutions. There may be  a single institution imparting a particular type of education  which is not being imparted by any other institutions and  having its  own admission procedure fulfilling the test  of  being fair, transparent and non-exploitative. All institutions  imparting same or similar professional education can join  together for holding a common entrance test satisfying the  

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above  said  triple  tests.  The  State  can  also  provide  a  procedure  of  holding  a  common  entrance  test  in  the  interest of securing fair and merit based admissions and  preventing maladministration. The admission procedure so  adopted by a private institution or group of institutions, if   it  fails  to satisfy all  or any of the triple tests,  indicated  hereinabove, can be taken over by the State substituting  its  own  procedure.  The  second  question  is  answered  accordingly.

138. It needs to be specifically stated that having regard  to  the  larger  interest  and  welfare  of  the  student   community to promote merit, achieve excellence and curb  malpractices,  it  would  be  permissible  to  regulate  admissions by providing a centralized and single-window  procedure.  Such a procedure to a large extent,  can  secure  grant  of  merit  based  admissions  on  a  transparent  basis.  Till  regulations  are  framed,  the  Admission  Committee  can  oversee  admissions  so  as  to  ensure that merit is not the casualty.”

54. By  examining  paragraphs  127  and  137  in  the  larger  context  of  

paragraphs 135, 137 and 138, it would appear that this Court’s emphasis  

was on the right of private educational institutions to admit students on the  

basis of “merit” as determined by marks secured in an entrance test. To  

this extent, the above paragraphs would stand for the proposition that both  

minority  and  non-minority  unaided  institutions  have  the  right  to  admit  

students who have secured higher marks in the entrance test, and not an  

equivalence between minority and non-minority institutions to engraft their  

own “sources” or “classes” of students from within the general pool. The  

rights of minority unaided educational institutions to select students, based  

on merit, is with respect to students who belong to that same minority. It  

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is not a right to define a source as such. We turn to excavate the rights of  

minority  unaided  educational  institutions,  and  non-minority  unaided  

educational institutions in the larger body of judgment P.A. Inamdar to get  

a more synoptic understanding of the ratio in that judgment.

55. In paragraph 124 of P.A. Inamdar it is stated that the majority did  

not “see much of a difference between non-minority and minority unaided  

educational institutions”.  That expression “much of a difference” gives the  

clue  that  there  is  an  actual  difference  between  the  rights  of  minority  

unaided institutions under clause (1) of Article 30, and the rights of non-

minority unaided institutions under sub-clause (g) of Clause (1) of Article  

19.  We will  address that issue a little  later  by gleaning the differences  

between minority and non-minority institutions enunciated in P.A. Inamdar.  

By using the expression “much of a difference” the Court did not mean a  

complete absence of difference. If the expression, by itself, were taken out  

of context, it could be understood in two ways: (i) that there is not much of  

a  difference  in  terms,  between  the  two  kinds  of  institutions  under  

consideration, based on an overall quantitative assessment of all the rights  

put  together,  with  a  few  differences  that  would  still  have  operational  

significance;  or  that  (ii)  in  all  respects  the  two  classes  of  educational  

institutions are more or less the same, with the differences being minor  

and not leading to any operational significance. We hold that it is in the  

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former sense that the said expression was used. By noticing the phrase  

“much  of  a  difference”  out  of  context  it  might  appear  that  this  Court  

surmised that there were no substantive differences as such, in terms of  

operational significance as to the groups from which the non-minority and  

minority unaided educational institutions could select students from, notice  

of the context, the specific issue that the Court was dealing at that point in  

the judgment, leads to a different conclusion. The issue that the Court was  

dealing with was with respect to whether the State could compel unaided  

educational institutions to choose students with lesser percentage of marks  

in order to implement its reservation policies. The last sentence of para  

124  clarifies  this:  “The  State  cannot  insist  on  private  educational  

institutions which receive no aid from the State to implement the State’s  

policy on reservation for granting admission on lesser percentage of marks  

i.e.,  on any criterion except merit.”  Minority institutions have to choose  

from  their  own  minority  group  who  are  otherwise  qualified,  and  non-

minority  institutions  have  to  choose  from  the  entire  group  who  are  

otherwise qualified. The modality of choosing within those groups has to be  

on  the  basis  of  inter-se  ranking  determined  in  accordance  with  marks  

secured  in  the  common  entrance  test.  When  we  look  at  the  following  

paragraph, no. 125 in P.A. Inamdar, it might also appear that the State is  

not  entitled  to  impose  a  state  quota,  whereby  the  private  unaided  

institutions  are  compelled  to  give  up  a  share  of  available  seats  to  the  

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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 Court made the  

observation  that  such  an  act,  of  imposition  of  a  quota,  would  be  an  

encroachment  on  the  freedoms  granted  pursuant  to  Article  30(1)  to  

minority institutions, and an unreasonable restriction under Article 19(1)(g)  

read  with  Article  19(6)  when  imposed  on  non-minority  educational  

institutions. The Court was not suggesting that insistence, by the State, on  

making merit based selections within the groups, general category for the  

non-minority  institutions,  and  the  specific  minority  group  to  which  the  

minority  educational  institution  belonged,  from which  the  two  kinds  of  

institutions  were  expected  to  select  students  from,  amounts  to  an  

imposition of a State quota. The context of the discussion was of imposition  

of  reservations  on private unaided non-minority  educational  institutions.  

This is borne out by the last sentence in paragraph 125, where it is stated  

“[M]erely  because  the  resources  of  the  State  in  providing  professional   

education are limited,  private educational institutions, which intend  

to provide better professional education, cannot be forced by the  

State  to  make  admissions  available  on  the  basis  of  reservation  

policy to less meritorious candidates.”  

56. The jurisprudence of TMA Pai with respect to unaided non-minority  

educational institutions, as explained by P.A. Inamdar, clearly seems to be  

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that  private  unaided  educational  institutions  seek  to  provide  better  

professional  education, and hence they should not be saddled with less  

meritorious  students,  i.e.,  those  who  get  lesser  marks  in  a  qualifying  

examination  such  as  a  common  entrance  test,  by  imposition  of  

reservations.  With  respect  to  minority  educational  institutions,  the  

imposition  of  reservations  or  the  imposition  of  the  duty  to  select  non-

minorities  beyond  a  sprinkling  would  be  an  encroachment  of  freedom  

guaranteed  by  clause  (1)  of  Article  30.  With  respect  to  non-minority  

unaided  institutions,  imposition  of  reservations  was  deemed  to  be  an  

unreasonable restriction on the freedom to engage in the occupation of  

“education” pursuant to sub-clause (g) of clause (1) of Article 19. In as  

much  as  Clause  (5)  of  Article  15  is  now  part  of  the  Constitution,  

reservations by the State for “socially and educationally backward classes”  

without the creamy layer, and for Scheduled Castes and Scheduled Tribes  

are now constitutionally permissible categories of state imposition on non-

minority educational institutions. The status of constitutional permissibility  

removes the basis for finding reservations to be an unreasonable restriction  

in the freedom to select students only on the basis of merit with respect to  

all  the  seats  in  a  non-minority  unaided  educational  institution.  

Consequently,  the  unaided  non-minority  educational  institutions  would  

have to comply with the State mandated reservations, selecting students  

within the specified reservation categories on the basis of inter-se merit.  

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The question then is whether with respect to the remaining seats, can the  

state insist that non-minority private unaided institutions select the most  

meritorious students, as determined by the marks secured in the qualifying  

test? The answer to that question is in the affirmative. As we have seen  

above that in paragraph 136 in P.A. Inamdar it was held that a Common  

Entrance Test “would better ensure the fulfillment of twin objectives  

of transparency and merit” and further on in para 138, it stated again  

“[I]t needs to be specifically stated that having regard to the larger  

interests and welfare of the student community to promote merit,   

achieve excellence and curb malpractices, it would be permissible  

to regulate admission by providing a centralized and single window  

procedure.  Such  a  procedure,  can  secure  grant  of  merit-based  

admissions on a transparent basis.”   

57. Clearly, the continuing concern expressed by the Seven Judge Bench  

in Inamdar,  echoes the concern of  this Court in TMA Pai:  the need to  

ensure merit, as determined by the marks secured on the qualifying exam,  

is  taken care  of  and  thereby  achieve  academic  excellence.  In  the  post  

clause (5)  Article  15 scenario,  we are looking at  all  the seats  that  are  

available in the non-reserved category. Those seats have to be filled by  

non-minority institutions on the basis of  merit  of  students, i.e.,  ranking  

determined in accordance with marks secured,  in  the general  category,  

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comprising of  the entire set  of  students who have taken the qualifying  

examination and secured the minimal marks.  

58. It  should be clear  from the above that  simply  taking a few stray  

sentences from here and there in P.A. Inamdar and asserting from those  

sentences  a  ratio  or  a  categorical  holding  would  be  an  incorrect  

appreciation  and  leads  to  an  inaccurate  assessment  of  what  this  Court  

actually said and meant. The judgments of this Court in TMA Pai, Islamic  

Academy and in P.A. Inamdar are long, dealing with extremely complex  

issues of law and fact, and diverse zones of similarities and dissimilarities  

between  the  various  types  of  educational  institutions  being  considered,  

both by the ownership structure – such as minority or non-minority, and  

aided or unaided -, as well as by the level of education being sought to be  

imparted.  On top of  that  the issues related to whether  recognition and  

affiliation was being sought or not.  So,  before arriving at  an applicable  

principle from within those huge judgments, for particular cases that courts  

deal  with,  it  is  imperative  that  context  of  observations  be  closely  

scrutinized, and also follow the many lines of delineation of many different  

ratios and principles. To this extent the structure that this Court in P.A.  

Inamdar  gleaned  from the judgment  of  this  Court  in  TMA Pai  provides  

some pathways for these complex interpretational tasks that are imposed  

on courts dealing with many specific aspects of the wider universe of facts  

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and law considered by this Court. And depending on the level of judicial  

review, the nature of judicial review, the courts may also have to take a  

look at the wider universe of facts and laws not taken into account by this  

Court in TMA Pai, Islamic Academy and P.A. Inamdar.  The majority of the  

questions  dealt  with  in  TMA Pai  related  to  minority  institutions.  In  this  

regard, P.A. Inamdar, gleans three kinds of minority institutions that were  

dealt with in TMA Pai: (a) minority educational institutions, unaided nor  

seeking recognition or affiliation; (b) minority educational institution asking  

for  affiliation  or  recognition;  and  (c)  minority  educational  institutions  

receiving State aid, whether seeking recognition and affiliation or not. To  

this broad classification, P.A. Inamdar finds that TMA Pai has considered  

three parallel non-minority educational institutions also: (a1) non-minority  

educational institutions, neither seeking aid nor recognition or affiliation;  

(b1) non-minority educational institutions, seeking recognition or affiliation  

but no aid; and (c1) non-minority educational institutions receiving State  

aid,  whether  seeking  recognition  or  affiliation  or  not.  To  the  matrix  of  

parallel  institutions,  P.A.  Inamdar  also  gleans  from  TMA  Pai,  another  

dimension on which  to  differentiate  educational  institutions:  by level  of  

education,  general  collegiate  education,  professional  graduate  level  

education  and  post-graduate  level  of  education.  It  is  within  this  

labyrinthine maze that this court sought to find similarities and differences  

between  minority  educational  institutions  and  non-minority  educational  

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institutions.  Consequently,  care  must  be  taken  in  interpreting  P.A.  

Inamdar, and a few stray sentences here and there ought not to be taken  

to indicate an actual  holding or ratio.  In P.A. Inamdar itself,  the seven  

judge bench cautioned that  such dependence on stray sentences would  

lead us astray. We have to delve into the foundations and the architectural  

super-structure  erected  by  P.A.  Inamdar  to  eke  out  the  correct  ratio  

applicable to the facts of the instant case.

59. In paragraph 91, of P.A. Inamdar, this Court enunciated one of the  

main  holdings  of  TMA  Pai  as:  “the  right  to  establish  an  educational  

institution, for charity or  for profit,  being an occupation is  protected by  

Article 19(1)(g)”. In this regard, in as much as the majority in the 11 judge  

bench  in  TMA  Pai,  along  with  those  who  partly  dissented  and  partly  

concurred, clearly held that education could be an occupation under Article  

19(1)(g) only when charitable in nature, we are of the opinion, and hold,  

that the observation in para 91 in P.A. Inamdar that education can be an  

occupation imbued with profit motive is not the ratio of the decision. One  

sentence or a phrase or an expression cannot be torn out of context and be  

characterized as the ratio decidendi.

60. That apart, a question is raised in para 91 of P.A. Inamdar. If the  

right to start and operate educational institutions is a general right for all  

citizens,  why did  the  framers  of  the  Constitution  have  to  enact  Article  

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30(1)?  It  is  observed  in  para  91 that  the  “reasons  are  too obvious  to  

require elaboration……” and that it was “intended to instill  confidence in  

minorities against any executive or legislative encroachment on their right  

to establish and administer educational institutions of their choice”. It is  

also further noted in para 91 that though Article 30(1) is styled as a right,  

it is more in the nature of protection for minorities. The following cited text  

of the opinion in paras 91, 92 and 93 from P.A. Inamdar are critical:

“91.    ………  But  for  Article  30,  an  educational   institution, even though based on religion or language,  could have been controlled or regulated by law enacted  under clause (6) of Article 19, and so, Article 30 was  enacted as a guarantee to the minorities that so far as   the  religious  minorities  are  concerned,  educational  institutions  of  their  choice  will  enjoy  protection  from  such legislation….. The minorities being numerically less  qua non-minorities,  may not  be able  to protect  their  religion or language and such cultural values and their   educational institutions will  be protected under Article  30  at  the  stage  of  law  making.  However,  merely  because  Article  30(1)  has  been  enacted  minority  educational  institutions  do  not  become immune  from  the operation of regulatory measures because the right  to  administer  does  not  include  the  right  to  maladminister.

92. As an occupation, right to impart education is a  fundamental  right  under  Article  19(1)(g),  and  therefore, subject to control by clause (6) of Article 19.  This right is available to all citizens without drawing a  distinction between minority and non-minority. Such a  right  is,  generally  speaking  subject  to  laws  imposing  reasonable restrictions in the interest of general public.  In  particular  laws  may  be  enacted  on  the  following  subjects: (i) the professional or technical qualifications  necessary for practicing any profession or carrying on  

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any occupation, trade or business; (ii) the carrying on  by  State  of  any  trade,  business,  industry  or  service  whether  to  the  exclusion,  complete  or  practical  of  citizens  or  otherwise.  Care  is  taken  of  minorities,   religious  or  linguistic,  by  protecting  their  right  to  establish and administer educational institutions of their  choice under Article 30. To some extent, what may be  permissible  by  way  of  restriction  under  Article  19(6)  may  fall  foul  of  Article  30.  This   is  the  additional   protection which Article 30(1) grants to the minorities.

93. The employment of expressions “right to establish  and  administer”  and  “educational  institutions  of  their  choice”  in  Article  30(1)  gives  the  right  a  very  wide  amplitude. Therefore, a minority educational institution  has a right to admit students of its own choice, it can as   a  matter  of  its  own free will  admit  students  of  non- minority  community. However,  non-minority  students  cannot be forced upon it.  The only restriction on the  free  will  of  the  minority  educational  institutions  admitting  students  belonging  to  a  non-minority  community is, as spelt out by Article 30 itself, that the  manner and number of such admission should not be  violative of the minority character of the institution.

94. Aid and affiliation or recognition, both by the State,  bring in some amount of regulation as a condition of  receiving  grant  or  recognition.  The  scope  of  such  regulations, as spelt out by a six-Judge Bench decision  in Rev. Sidhajbhai case13 and a nine-Judge Bench case  in  St.  Xavier’s14 must  satisfy  the  following  tests:  (a)  regulation is reasonable and rational; (b) it is regulative  of  the  essential  character  of  the  institution  and  is   conducive to making the institution an effective vehicle  of  education  for  the  minority  community  or  other  persons  who  resort  to  it;  (c)  it  is  directed  towards  maintaining  excellence  of  education  and  efficiency  of  administration  so  as  to  prevent  it  from  falling  in   standards.  These tests  have met the approval  of  Pai  Foundation.”  

13 Rev. Sidhajbhai Sabhai v. State of Gujarat (1963) 3 SCR 837 14  Ahemdabad St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717

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61. A clear set of distinctions emerge between educational  institutions  

that are started and operated by minorities and non-minorities. The level of  

regulation that the State can impose under Clause (6) of Article 19 on the  

freedoms enjoyed 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) continuing to maintain  

minority status by admitting mostly students of the minority to which the  

minority institution claims it  belongs to,  except for a sprinkling of non-

minority students. The critical difference in regulation that would be higher  

in the case of non-minority educational institutions is that they only select  

students  from the general  pool,  and based on  merit  as  determined  by  

marks secured in qualifying examinations.  The ability  to choose from a  

smaller group within the general pool, becomes available only to those who  

are  constitutionally  protected  under  Clause (1)  of  Article  30.  Even that  

ability  to choose from within  the smaller  group is  not  really  a right  to  

choose  a  “source”.  The  source  is  given.  The  source  can  only  be  the  

minority to which the minority educational institution claims it belongs to.  

Once the choice is exercised to be an educational institution that serves a  

minority, the source itself is given by Clause (1) of Article 30 and depends  

on whether the group claiming to be a minority is actually a minority or  

not,  as  determined  at  the  State  level.  Neither  AWES  nor  ACMS,  are  

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protected by any constitutional provision that allows it to choose to be an  

educational institution serving only a small class of students from within  

the general pool. If indeed Army personnel now constitute a “Socially and  

Educationally Backward Class”, then under Clause (5) of Article 15, it is for  

the State to determine the same, and provide by law, for reservations of  

wards  of  Army  personnel,  in  consonance  with  the  constitutional  

jurisprudence  extant  with  regard  to  how  a  Socially  and  Educationally  

Backward Class is to be delineated, for instance by removal of the creamy  

layer,  and that  the  extent  of  reservations  to  be provided ought  not  to  

exceed certain levels etc. That has not happened in this instant matter.  

Consequently,  all  of  the  permissible  restrictions  and  regulations  under  

Clause (6) of Article 19 that non-minority institutions would be subject to  

would also be applicable with respect to ACMS. These regulations would  

also include a determination of how students in the non-reserved category  

of seats, in the post 93rd Amendment scenario, be admitted: on the basis of  

merit,  determined  by  marks  secured  on  the  common  entrance  test.  

Maintenance  of  overall  academic  standards,  which  apparently  can  be  

properly achieved only if high importance is placed on admitting students  

on the basis of ranking determined by marks secured in entrance tests, is  

necessarily a State concern, which it may relax only in respect of those  

groups  that  it  is  constitutionally  permitted  to  relax  for.  In  the  case  of  

minority educational institutions, that relaxation is on account of Clause (1)  

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of  Article  30  provided  minority  educational  institutions  are  maintaining  

their minority status by admitting mostly minority students except for a  

sprinkling of non-minorities; and with respect to non-minority educational  

institutions, only with respect to statutorily determined percentage of seats  

for  Scheduled  Caste,  Scheduled  Tribes,  and  Socially  and  Educationally  

Backward  Classes  as  enabled  by  Clause  (5)  of  Article  15  and  other  

constitutionally  permissible  classes.  With  respect  to  Socially  and  

Educationally Backward Classes, such classes can be determined only after  

excluding the creamy layer, as held by this Court in Ashoka Kumar Thakur.

62. To the above we need to add another dimension. In P.A. Inamdar,  

another fine distinction is drawn between professional and non-professional  

educational institutions. We now turn to paragraphs 104 and 105 of P.A.  

Inamdar below:

“104  Article  30(1)  speaks  of  “educational  institutions”  

generally and so does Article 29(2). These articles do not  

draw  any  distinction  between  an  educational  institution  

dispensing  theological  education  or  professional  or  non-

professional education. However, the terrain of thought as  

has  developed  through  successive  judicial   

pronouncements,  culminating  in  Pai  Foundation  is  that  

looking at the concept of education, in the backdrop of the  

constitutional  provisions,  professional  educational  

institutions  constitute  a  class  by  themselves  as  

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distinguished from educational institutions imparting non-

professional  education.  It  is  not  necessary  for  us  to  go  

deep into this aspect of the issue posed before us in as  

much  as  Pai  Foundation  has  classified  that  merit  and  

excellence  assume special  significance  in  the  context  of   

professional studies. Though merit and excellence are not  

anathema  to  non-professional  education,  the  need  for  

merit  and excellence  therein  is  not  of  the degree as  is   

called for in the context of professional education.

105.  Dealing  with  unaided  minority  educational  

institutions, Pai Foundation holds that Article 30 does not   

come in the way of the State stepping in for the purpose of  

securing  transparency  and  recognition  of  merit  in  the  

matter of admissions……. However, a distinction is to be  

drawn between unaided minority educational institution at  

the level of schools and undergraduate colleges on the one  

side  and  institutions  of  higher  education,  in  particular  

those imparting professional education, on the other side.  

In  the  former,  the  scope  of  merit-based  selection  is  

practically nil and hence may not call for regulation. But in  

the case of the latter, transparency, and merit have to be  

unavoidably  taken care  of  and cannot  be compromised.  

Those  could  be  regulatory  measures  for  ensuring  

educational standards …….. The source of this distinction  

between two types of educational institutions referred to  

hereinabove is to be found in the principle that right to  

administer does not include a right to maladminister.”

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63. What stands out therefore, is that even though it is quite clearly and  

explicitly  stated  that  maintenance  of  merit  as  determined  by  marks  

secured in qualifying examinations is an absolute necessity under Clause  

(6) of Article 19 for those enjoying the freedoms only under sub-clause (g)  

of Clause (1) of Article 19, the protection of clause (1) of Article 30 to  

minorities is extended to choosing those with merit, based on marks on the  

qualifying examinations,  amongst their own minority group. There is no  

choice of “source” here. The choice is only with respect to being a minority  

or a non-minority educational institution. If the choice is exercised that the  

promoters  wish  to  start  a  minority  educational  institution,  the  source  

immediately gets affixed, by clause (1) of Article 30 and a determination of  

who falls within that minority group. The educational institution does not  

do that. The State does that,  following a constitutionally mandated and  

permissible  process.  In  that  sense,  even  there  it  is  the  State  which  

delineates the “source” so that the protections of Clause (1) of Article 30  

indeed  flow  to  the  minorities  that  the  State  was  expected  to  protect.  

Consequently,  this  attempt  to  define  an  equivalence  between  non-

minorities and minorities, and then come up with the idea that minorities  

can choose or create a “source” from within the general pool, and hence  

the non-minorities should be free to also create their own “sources” has to  

be  deemed  to  be  illogical,  and  based  on  a  weird  interpretation  of  the  

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Constitution and the reality on the ground. The non-minority educational  

institutions have the basic freedom to choose: those students who are the  

most  meritorious  as  determined  on  the  basis  of  marks  secured  in  a  

common entrance test  with  respect  to filling  up the  seats  that  are not  

covered  by  reservations  for  Scheduled  Castes,  Scheduled  Tribes,  and  

“Socially  and Educationally  Backward Classes”  pursuant  to clause (5) of  

Article  15. Consequently  choice of  students by non-minority  educational  

institutions can only be from the general pool with respect to non-reserved  

seats. They cannot make further distinctions of their own accord.

64. In light of the above we have to conclude that non-minority private  

unaided professional colleges do not have the right to choose their own  

“source” from within the general pool. The equivalence between minority  

and non-minority unaided institutions, apart from that distinction because  

of clause (1) of Article 30, was to be on the basis that both are subject to  

reasonable restrictions pursuant to clause (6) of Article 19, that neither  

minority  nor  non-minority  institutions  could  maladminister  their  

educational institutions, especially professional institutions, that affect the  

quality of education, and by choosing students arbitrarily from within the  

sources that they are entitled to choose from. In the case of non-minority  

institutions, especially professional  institutions,  the “source” can only be  

the general  pool,  and selection  has to  be based on inter-se ranking of  

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students  who  have  qualified  and  applying  or  opting  to  choose  to  be  

admitted  to  such  non-minority  educational  institutions.  In  the  case  of  

minority  educational  institutions,  the  “source”  can  be  delimited  to  the  

particular minority the institution belongs to. To hold otherwise would be  

illogical,  even if  one were to assume that  what is  afforded to minority  

institutions  is  only  a  protection  rather  than  a  full  fledged  right.  The  

protection under clause (1) of Article 30 is granted to minority institutions  

so  long  as  they  maintain  their  minority  status.  If  the  non-minority  

educational institutions could choose their own sources, minorities which  

are assured equal protections as non-minorities should certainly have that  

right too. The added protections to minority educational institutions makes  

sense only in the event that non-minorities are restricted to choosing from  

the general pool,  and minorities from the delimited source of their own  

minority. Otherwise Clause (1) of Article 30 would become meaningless.

65. Consequently,  we  hold  that  the  arguments  of  learned  Senior  

Counsels, Mr. K.K. Venugopal and Mr. Jaideep Gupta that ACMS as a non-

minority  professional  institution  has  the  right  to  delimit  a  source  of  

students are unpersuasive.  ACMS has only the right to choose students  

from within the general  pool.  Further,  in as  much as this  court  in P.A.  

Inamdar  found  the  judgment  in  Islamic  Academy  to  be  incorrect  in  

presuming  that  there  could  state  quotas  and  management  quotas,  we  

71

would  also  have to  find  that  the  10% management  quota  described  in  

clause (a) of sub-section (1) of Section 12 to be suspect.

66. With regard to the proposition that the exemptions granted to ACMS  

to fill up all of its seats only with wards of army personnel on account of  

national interest has also been noted by us. However, given the ratio of  

P.A.  Inamdar,  we are unable  to  grant any relief  on that  count.  We do  

recognize that it may indeed be the case that army personnel, particularly  

those at the lower end of the hierarchy in the army, and their families, may  

be suffering from great hardships. It would indeed be, and ought to be a  

matter of considerable national distress if persons who have agreed to lay  

down their lives, for the sake of national security, are not extended an  

empathetic  understanding  of  their  needs  and  aspirations.  However,  the  

ratio of the judgments in TMA Pai, Islamic Academy and P.A. Inamdar, by  

larger  benches of this  Court,  leaves us with no options with respect  to  

holding that ACMS may select only those students who have scored higher  

marks in the common entrance test with respect to seats remaining after  

taking into account reserved seats. This is notwithstanding what we may  

perceive to be an odious and an inherently unjust situation. If any special  

provisions need to be made to protect the wards of Army personnel, this  

may possibly be done by the State, by laws protected by Clause (5) of  

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Article 15. The private society, of former and current army personnel by  

themselves cannot unilaterally choose to do the same.

67. Prior to the enactment of 93rd Constitutional (Amendment) Act 2005,  

whereby Clause (5) was inserted into Article 15 of our Constitution, the  

ratio  in  TMA  Pai,  as  further  explained  by  P.A.  Inamdar,  would  have  

foreclosed any options for the society and this country to relax the strict  

requirement  that all admissions be on the basis of “merit based on marks  

secured in qualifying examinations.” The other option would have been for  

Courts to find, in the interests of justice, to expand the “doing complete  

justice”  jurisprudence  under  Article  142  to  correct  such  instances  of  

injustice,  which raises  its  own problems.  If  we find that  every unaided  

educational institution can define its own source, then we run head long  

into a situation wherein the entire field of higher education is carved up  

into “gated communities”, with each new educational institution defining its  

own source in whichever manner it may choose to, as long as overt and  

invidious constitutional grounds of classification are not resorted to. How  

will  the  scholars  in  those  colleges  interact  with  people  from  other  

communities,  other  social  backgrounds,  so  that  they  can  perceive  and  

conceive  the  manner  in  which  they  may  have  to  apply  what  they  are  

learning to solve the problems in the wider social context of India? Where  

would  such  classifications  stop?  Would  members  of  the  judiciary,  both  

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higher and lower, then determine that they will  start many law colleges  

which  will  only  admit  wards  of  such  members  of  the  judiciary?  Would  

Indian Administrative Officers, along with some slightly lower level in the  

administrative rung then have a similar right? Would the members of the  

police  force  also  then get  such  rights?  Would  NASSCOM or  a  group of  

software  companies  say  that  they  want  to  start  software  engineering  

colleges that will open their portals only to those who belong to NASSCOM?  

Where will this stop? How will this nation take the burden of such walled  

and divided portals of knowledge? What will become of the prayer of our  

national poet laureate, that knowledge be free and where the world is not  

broken up into fragments of narrow domestic walls? Have we set ourselves  

on the path to such divisiveness, at the very source of the one force that  

could liberate us and unite us, and make us a more egalitarian society? If  

we were to uphold the logic of the learned Senior Counsel appearing for  

the Respondents, which we cannot under the ratio of TMA Pai, and P.A.  

Inamdar, but under “complete justice jurisprudence” of Article 142, then  

we would have set ourselves on a slippery slope, whereby the entire field  

of higher education would comprise of “gated communes” or some new and  

perverse form of caste system, where existing advantages, of occupations,  

social and economic stature, would get ossified only within a small segment  

of the population.  Surely,  fundamental  rights have been granted to the  

citizens,  to  be  free  and  build  a  better  society  or  at  least  refrain  from  

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actions that would create further walls of social division.

VII

68. One last thing remains.  

69. As we had noted earlier, the Constitutional validity of Delhi Act 80 of  

2007 was never raised, either by the Appellants or the Respondents, in any  

of the proceedings earlier. For the first time, before us, the learned Senior  

Counsel,  Mr.  Jaideep  Gupta  has  raised  the  question  of  whether  the  

provisions  of  clause (5)  of  Article  15 violate  the  basic  structure  of  the  

Constitution  in  so  far  as  they  relate  to  enablement  of  the  making  of  

“special  provisions”,  by  law,  with  respect  to  admissions  of  Scheduled  

Castes, Scheduled Tribes, and Socially and Educationally Backward Classes  

into  private  unaided  non-minority  educational  institutions.  This  would  

obviously raise an issue regarding applicability of Delhi Act 80 of 2007 in  

the instant matter. We are hence, required to look at this issue too. In  

pressing the  challenge of  basic  structure  doctrine  against  clause (5)  of  

Article 15, the learned Senior Counsel relied on the opinion of our learned  

brother  Justice  Dalveer  Bhandari  in  Ashoka  Kumar  Thakur,  on  the  

provisions of clause (5) of Article 15 that are applicable with respect to  

private unaided non-minority educational institutions. We note the specific  

text  of  the  constitutional  provisions  below,  and  thereafter  briefly  

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summarise the opinion of Bhandari J, which learned Senior Counsel adopts  

wholesale as his submissions.

Clause (5) of Article 15 states as follows:

“Nothing in this article or in sub-clause (g) of clause (1) of   Article 19 shall prevent the State from making any special  provisions,  by  law,  for  the advancement  of  any socially  and educationally backward classes of citizens or for the  Scheduled Castes or the Scheduled tribes insofar as such  special provisions relate to their admission to educational  institutions  including  private  educational  institutions,  whether  aided or  unaided  by  the  State,  other  than the  minority educational institutions referred to in clause (1) of  Article 30.”

70. In  Ashoka  Kumar  Thakur,  apart  from Bhandari  J.,  the  other  four  

learned  judges  did  not  evaluate  the  issue  of  whether  the  provisions  in  

clause (5) of Article 15, as applicable to unaided non-minority educational  

institutions, violate the basic structure of the Constitution. This was on the  

grounds that no unaided educational institutions were before this Court.  

The majority, including Bhandari J., held that the same provisions in so far  

as they relate to governmental and private aided institutions to be valid  

and not in violation of the basic structure. However, Bhandari J., opined  

that in as much as reservations would be imminent, pursuant to clause (5)  

of Article 15, the same ought to be tested because the content of freedoms  

enunciated by this Court, in TMA Pai, and P.A. Inamdar, were likely to be  

destroyed. It was granted that, even though this Court had held in TMA  

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Pai, as explained in P.A. Inamdar, that imposition of reservations on non-

minority  unaided educational  institutions  to be unreasonable  restrictions  

under clause (6) of Article 19 on the freedoms granted by sub-clause (g) of  

clause (1) of  Article  19 to pursue the charitable occupation of starting,  

operating,  financing,  working  and  teaching  in  non-minority  unaided  

educational institutions, the same could be subjected, by a constitutional  

amendment, to the provisions of clause (5) of Article 15. Nevertheless, it  

was reasoned that in as much as the freedoms of citizens to engage in the  

occupation of education was under potential threat, and further because  

the occupation of education was one of the activities covered by freedoms  

that were part of the “Golden Triangle”, as enunciated in Minerva Mills Ltd.  

V Union of India15, it was posited that the details be examined as to the  

degree of abridgment of the freedom of the “educators” to start, operate,  

manage,  finance,  work  in  and  teach  in  non-minority  educational  

institutions.  

71. The main conclusion reached was that “educators” who do not take a  

“paisa of public money” ought to be free from restrictions of State imposed  

reservations.  Further, it was also opined that even though non-minority  

unaided  educational  institutions  would  continue  to  exist,  and  educators  

would have their occupation, the “greatest impact on the educator is that  

neither he nor his institution will choose whom to teach”, in as much as in  

15 (1980) 3 SCC 625

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“49.5%”  of  the  time  the  State  would  determine,  through  a  policy  of  

reservations, who the educators would teach. In this regard, the test for  

violation  of  basic  structure  doctrine  was  conducted  by  an  impact  and  

effects  test  (or  what  is  called  as  a  “rights  test”),  claiming  that  the  

observations  of  I.R.  Coelho  v.  State  of  Tamil  Nadu16 in  para  151  (ii)  

mandated such a test. In the first phase, the so called impact stage, it was  

determined that clause (5) of Article 15 would indeed affect the “identity”  

of the freedom of private citizens to engage in the charitable occupation of  

starting, operating, managing, working in, financing and teaching in non-

minority unaided educational institutions. To this extent, the observations  

in  TMA Pai  were  relied  on  to  trace  the  contours  of  the  outline  of  the  

“identity” of the freedom under sub-clause (g) of clause (1) of Article 19.  

The test of violation of basic structure doctrine was further stated to be  

whether the identity of the freedom of educators in non-minority unaided  

educational institutions under sub-clause (g) of clause (1) of Article 19 was  

“compromised” by clause (5) of Article 15. It was also held that even if the  

freedom to choose students of one educator was affected, then the identity  

of the freedom to engage in the said occupation guaranteed by sub-clause  

(g) of clause (1) of Article 19 itself would have been compromised, and  

consequently the provisions in clause (5) of Article 15 in as much as they  

affect  non-minority  unaided  educational  institutions  would  have  to  be  

deemed  to  be  unconstitutional  and  violative  of  the  basic  structure.  16 (2007) 2 SCC 1

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Thereafter an “effect” test was conducted, and by noting that imposition of  

reservations would immediately (1) make academic standards suffer; (2)  

affect the ability of attracting and retaining good quality faculty; (3) the  

incentive to establish a first-rate unaided educational institution is made  

difficult; and (4) ultimately the global reputation of educational institutions  

would be damaged, it was held that freedom of “educators” in non-minority  

unaided educational institutions would have been compromised and hence  

abrogated. Further, it is determined that sub-clause (g) of clause (1) of  

Article 19 to itself be a basic feature of the Constitution, and it is further  

observed that:

“Given the dramatic effect that reservations would have on  educators,  the  unaided  institutions  in  which  they  teach,  and consequently society as a whole, Article 19(1)(g) has  been  more  than  abridged…..  The  identity  of  the  Constitution  is  altered  when  unreasonable  restrictions  make  a  fundamental  right  meaningless….  Imposition  of  reservations on unaided institutions has abrogated Article  19(1)(g), a basic feature of the Constitution.”

72. The learned Senior Counsel, Mr. Jaideep Gupta, has pressed upon us  

to  follow the same methodology  and  find  that  clause  (5)  of  Article  15  

abrogates the basic structure of the constitution, and consequently declare  

those  aspects  of  Delhi  Act  80  of  2007  that  impose  reservations  to  be  

unconstitutional. We state our response very simply: we are not persuaded  

by the same, and for the reasons discussed hereafter with humility and  

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utmost respect beg to differ from the view taken by our esteemed brother  

Bhandari J.

73. Clause (5) of Article 15 is an enabling provision and inserted by the  

93rd Constitutional  (Amendment)  Act,  2005  by  use  of  powers  of  

amendment in  Article 368. The 93rd Constitutional (Amendment) Act, 2005  

was in response to this Court’s explanation, in P.A. Inamdar, of the ratio in  

TMA  Pai,  that  imposition  of  reservations  on  non-minority  unaided  

educational institutions, covered by sub-clause (g) of clause (1) of Article  

19, to be unreasonable restrictions and not covered by clause (6) of Article  

19.  The  purpose  of  the  Amendment  was  to  clarify  or  amend  the  

constitution in a manner that what was held to be unreasonable would now  

be  reasonable  by  virtue  of  the  Constitutional  status  given  to  such  

measures. The correct approach would then be to test whether powers of  

amendment in Article 368 do extend to imposing restrictions on a right,  

which otherwise would have been held to be “unreasonable” on account of  

a judgment of this Court. Once that test is conducted and found to be not  

violating the basic structure of the Constitution, the grounds on which this  

Court  had  previously  found  the  reservations  to  be  unreasonable  would  

vanish. This is even more so, when the amendment, and the consequent  

legislation,  cannot  and  do  not  seem  to  be  directed  at  completely  

eliminating the possibility of private citizens engaging in that activity, the  

right to charge appropriate fees is protected, and moreover the existing  

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jurisprudence does not allow, normally an imposition of reservations above  

50%. If we were to be guided by the submissions in this regard by the  

learned Senior Counsel we find that we would have to invert the logic of  

the  basic  structure  doctrine,  state  the  propositions  of  the  test  in  a  

tautological  manner  and  consequently  convince  ourselves  that  there  is  

great danger to constitutional identity by virtue of legislations that could  

plausibly be enacted by the State by virtue of the enabling provisions of  

clause (5) of Article 15  with respect to non-minority unaided educational  

institutions.   We  find  that  if  we  were  to  do  that,  we  would  have  set  

ourselves on the path to ineradicably alter the identity of our Constitution,  

damage its very purposes and the national project, and wipe out decades  

worth of jurisprudence with regard to the importance of Directive principles  

of State Policy, thereby bringing back the principles enunciated in the case  

of I.C. Golaknath v. State of Punjab17, that none of the fundamental rights  

can be abridged or affected in any manner, which was set aside by this  

Court in Keshavananda Bharati v. State of Kerala.18  

74. In this regard we also opine that if we adopt the interpretation of  

para 151(ii) of I.R. Coelho that it mandates a “rights test” we would end up  

misinterpreting the modality of testing a Constitutional amendment on the  

anvil  of the basic structure doctrine as enunciated by this Court in that  

17 (1967) 2 SCR 762 18 (1973) 4 SCC 225.

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case itself. In this regard, a basic distinction was drawn by this Court, in  

I.R. Coelho, as between “rights test” and “essence of rights” test, and it  

was stated in para 142 that:

“There is also a difference between the “rights test” and  the “essence of rights” test. Both form part of application  of  the  basic  structure  doctrine.  When  in  a  controlled  Constitution  conferring  limited power of  amendment,  an  entire chapter is made inapplicable, the “essence of right”  test  as  applied  in  M.  Nagaraj  Case  will  have  no  applicability. In such a situation, to judge the validity of  law, it is the “right test” which is more appropriate.”

75. Paragraph 151(ii) in I.R. Coelho, when read by itself, may suggest  

that an effect and impact test be used; however we are unable to do so  

because of what was stated in para 142 of I.R. Coelho stated above. This is  

on account of the fact that if we were to take the concluding answer given  

to a specific  question, and conflating the same to the status of a ratio  

applicable  to  all  other  general  or  specific  facts,  we run the risk  of  not  

recognizing  the  rationale  by  which  the  Court  had  arrived  at  the  final  

answers. This has a deleterious effect on law. The broader principles that  

are applied, in a specific manner to particular fact patterns located in the  

specific  questions  that  the  courts  set  out  to  answer,  would  then  be  

obliterated, and the narrow application that the Court finds for a specific  

situation,  which  is  but  an instance  of  the broader  principle,  the genus,  

would have taken over. Moreover, in the preceding paragraph 150, this  

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Court enunciated that it is the constitutional validity of the Ninth Schedule  

laws which have to be adjudged by applying the “direct impact and effect  

test i.e. rights test.” Consequently, if we were to just take the text of para  

151  (ii)  by  itself  as  the  ratio,  then we would  also  run the  risk  of  not  

recognizing  the  multiple  principles  enunciated  in  the  conclusion  itself.  

Hence, we find it necessary to cite below sub-paras (i), (ii), (iii), (iv) and  

(v)  of  Para  151  of  I.R.  Coelho  below (emph.  supplied),  and  thereafter  

derive the principle that is applicable in the instant matter:

“(i) A law that abrogates or abridges rights guaranteed by  Part III of the Constitution may violate the basic structure  or it may not.  If  former is the consequence of the law,  whether by amendment of any article or by an insertion in   the Ninth Schedule, such law will have to be invalidated in   exercise of judicial review power of the Court. The validity  or invalidity would be tested on the principles laid down in  this judgment.

(ii)  The majority judgment in Keshavananda Bharati case  read with Indira Gandhi case19 requires the validity of each  new constitutional  amendment  to  be judged on its  own  merits.  The  actual  effect  and impact  of  the  law on  the   rights  guaranteed  under  Part  III  has  to  be  taken  into  account for determining whether or not it destroys basic  structure, The impact test would determine the validity of   the challenge.

(iii)  All amendments to the Constitution made on or after   24-4-1973 by which the Ninth  Schedule  is  amended by  inclusion of various laws therein shall have to be tested on  the touchstone of  the basic  or  essential  features of  the  Constitution as reflected in Article 21 read with Article 14,   Article 19, and the principles underlying them. To put it  

19 Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1

83

differently  even  though  an  Act  is  put  in  the  Ninth  Schedule, its provisions would be open to attack on the  ground that they destroy or damage the basic structure if  the fundamental right or rights taken away or abrogated  pertains to or pertain to the basic structure.

(iv)  Justification  for  conferring  protection,  not  blanket  protection, on the laws included in the Ninth Schedule by  constitutional  amendments  shall  be  a  matter  of  constitutional  adjudication  by  examining  the  nature  and  extent of infraction of a fundamental right by a statute,   sought  to  be  constitutionally  protected,  and  on  the  touchstone of the basic structure doctrine as reflected in  Article 21 read with Article 14 and Article 19 by application  of the “rights test” and “essence of the right” test taking  the synoptic view of the Articles in Part III as held in Indira   Gandhi  case.20 Applying  the  above  tests  to  the  Ninth  Schedule laws, if the infraction affects the basic structure  then such law(s) will not get the protection of the Ninth  Schedule.

(v) This is our answer to the question referred to us vide  order dated 14-9-1999 in I.R. Coelho v. State of T.N”

76. It should be pointed out that I.R. Coelho judgment was delivered to  

answer  the  question,  as  pointed  out  in  para  5,  as  to  whether  it  is  

“permissible for the Parliament under Article 31-B to immunize legislation  

from fundamental rights by inserting them into the Ninth Schedule, and if   

so, what is its effect on the power of judicial review of the Court”. In para  

78 of I.R. Coelho it was noted that the “real crux of the problem is to the  

extent and nature of immunity under Article 31-B can validly provide”. The  

question of immediate purport was whether Article 31-B provided a blanket  

protection  such  that  legislative  enactments  which  destroy  the  basic  

20 1975 Supp SCC 1

84

structure could be included in the Ninth Schedule,  and thereby become  

immune from the test of basic structure itself.

77. One of the incidental questions that this Court in I.R. Coelho sought  

to  answer  was  whether,  pursuant  to  Keshavananda,  none  of  the  

fundamental  rights  were  to  be  considered  to  be  a  part  of  the  basic  

structure.  This  was  so,  in  the  light  of  the  opinion  of  Khanna,  J.,  in  

Keshavananda, which seemed to suggest that fundamental rights were not  

to be treated as a part of the basic structure. However, in light of Khanna  

J’s, clarification in the Indira Nehru Gandhi v Raj Narain21 case, that his  

opinion  in  Keshavananda  could  not  be  read  to  mean  that  none  of  the  

fundamental rights could be treated as a part of basic structure, this Court  

in I.R. Coelho in para 97, held that “the rights and freedoms created by the  

fundamental rights chapter can be taken away or destroyed by amendment   

of the relevant article, but subject to the limitation of the basic structure  

doctrine”. In para 98 it was observed by this Court that “the first aspect to  

be borne in mind is that each exercise of the amending power inserting  

laws  into  the  Ninth  Schedule  entails  a  complete  removal  of  the   

fundamental rights chapter vis-à-vis the laws that are added to the Ninth  

Schedule. Secondly, insertion in the Ninth Schedule is not controlled by  

any defined criteria or standards by which the exercise of power may be  

evaluated. The consequence of insertion is that it nullifies entire Part III of   

21 1975 Supp SCC 1.

85

the Constitution. There is no constitutional control on such nullification……..   

The supremacy of the Constitution mandates all  constitutional bodies to  

comply  with  the  provisions  of  the  Constitution.  It  also  mandates  a   

mechanism  for  testing  the  validity  of  legislative  acts  through  an  

independent  organ  viz.  the  judiciary.”  Thus,  it  appears  that  what  was  

exercising the collective mind of the Nine Judge Bench in I.R. Coelho was  

the  breadth  of  protections  that  were  being  sought  and  placed  on  laws  

included  in  the  Ninth  Schedule:  from  any  standards  or  values  of  the  

Constitution itself, including complete evisceration of Part III and judicial  

review. In fact this is borne out by para 103 wherein it was observed that  

“[T]he absence of guidelines for exercise of such power means the absence  

of  constitutional  control  which  results  in  destruction  of  constitutional   

supremacy and creation of parliamentary hegemony and absence of full   

power of judicial  review to determine the constitutional  validity of  such  

exercise.”  

78. It would be pertinent to note that the provisions of new clause (5) of  

Article 15 do not purport to take away the power of judicial review, or even  

access to courts through Articles 32 or 226. Neither do the provisions of  

clause (5) of Article 15 mandate that the field of higher education be taken  

over  by the State itself,  either to the partial  or  total  exclusion,  of  any  

private  non-minority  unaided educational  institutions,  a  power  that  was  

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most  certainly  granted  under  clause  (6)  of  Article  19,  which  had  been  

inserted by the 1st Constitutional Amendment in 1951. The purport of its  

provisions is that sub-clause (g) clause (1) of Article 19 should not be read  

to mean that if the State were to make “special provisions” with respect to  

admission  of  Scheduled  Castes,  Scheduled  Tribes,  and  Socially  and  

Educationally  Backward  Classes  to  non-minority  unaided  educational  

institutions the same should not be deemed to be unreasonable. A small  

portion, of one of the activities of one particular occupation in the entire  

field of occupations that are a part of the guaranteed freedoms by sub-

clause (g) of clause (1) of Article 19, is to be restricted. Further, such an  

amendment  was necessary,  as  stated  in  the  Statement  of  Objects  and  

Reasons  of  the  Constitution  (one Hundred  and Fourth  Amendment)  Bill  

2005 (which became the 93rd Constitutional (Amendment) Act, 2005), to  

promote the “educational  advancement of the socially and educationally  

backward classes of citizens….The Scheduled Castes and Scheduled Tribes  

in  matters  of  admission  of  students  belonging  to  these  categories  in  

unaided  educational  institutions  other  than  minority  educational  

institutions.” It was also stated that greater access to higher education,  

including professional education to students belonging to weaker segments  

is a matter of major concern, and that the number of seats available in  

aided  or  State  maintained  institutions,  particularly  in  respect  of  

professional  education,  was  limited  in  comparison  to  those  in  private  

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unaided institutions.  Furthermore,  in  as  much as Article  46, a Directive  

Principle of State Policy, commands that the State promote with special  

care the educational and economic interests of the weaker sections of the  

population and protect them from social injustice, it was stated that access  

to education to be important to ensure advancement of persons belonging  

to Scheduled Castes, Scheduled Tribes and the Socially and Educationally  

Backward Classes.  

79. In this regard, I.R. Coelho makes some very important observations,  

about the equality code and egalitarian content of fundamental rights that  

we opine have a direct bearing on the issues of basic structure review of  

clause (5) Article 15. In particular after noting that Part III “has a key role  

to play in the application” of the basic structure doctrine (para 100), the  

Court went on to state para 101:

“Regarding  the  status  and  stature  in  respect  of  fundamental  rights  in  constitutional  scheme,  it  is  to  be  remembered that fundamental  rights are those rights of  citizens or those negative obligations of the State which do  not permit encroachment on individual liberties. The state  is to deny no one equality before the law. The object of  fundamental  rights  is  to  foster  the  social  revolution  by  creating a society egalitarian to the extent that all citizens  are to be equally free from coercion or restriction by the  State.  By enacting fundamental rights and directive  principles  which  are  negative  and  positive  obligations  of  the State,  the  Constituent  Assembly  made  it  the  responsibility  of  the  Government  to  adopt a middle path between individual liberty and  public  good.  Fundamental  rights  and  directive  

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principles have to be balanced. The balance can be  tilted  in  favour  of  the  public  good.  The  balance  however  cannot  be  over-turned  by  completely  overriding  individual  liberty.  This  balance  is  an  essential feature of the Constitution.” (emph. Supp.)

80. Further,  it was also stated in,  in para 102, that in evaluating the  

permissibility of an amendment, one needs to look at, as done in Waman  

Rao v. Union of India,22 how far the amendment is “consistent with the  

original;  you  cannot  by  an  amendment  transform the  original  into  the  

opposite of what it is.  For that purpose, a comparison is undertaken to  

match  the  amendment  with  the  original.  Such  a  comparison  can  yield  

fruitful results even in the rarefied sphere of constitutional law.” In other  

places, as in para 105, it is noted that “Economic growth and social equity  

are two pillars of  our Constitution, which are linked to the rights of  an  

individual (right to equal opportunity), rather than in the abstract. Some of  

the rights in Part III constitute fundamentals of the Constitution like Article   

21 read with Articles 14 and 15 which represent secularism etc., As held in   

Nagaraj23 egalitarian equality exists in Article 14 read with Articles 16(4),   

(4-A), (4-B) and, therefore, its wrong to suggest that equity and justice  

finds  place  only  in  the  directive  principles.”  (emph.  supp’d).  Upon  

discussing various aspects such as the fact that extensive discussions were  

held in Keshavananda with respect to status of property as a fundamental  

22 (1981) 2 SCC 362 23 M. Nagaraj v Union of India (2006)8 SCC 202

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right, that in the Indira Gandhi case Chandrachud, J., posits that equality  

embodied in Article 14 is part of the basic structure of the Constitution,  

that in Minerva Mills it was held that Articles 14, 19 and 21 clearly form  

part of the basic structure of the Constitution and cannot be abrogated, it  

is concluded in para 114 that “the result of the aforesaid discussion is that  

since basic structure of the constitution includes some of the fundamental  

rights,  any law granted Ninth Schedule protection deserves to be  

tested against these principles. If the law infringes the essence of  

any fundamental rights, or any other aspect of the basic structure  

then  it  will  be  struck  down.  The  extent  of  abrogation  and  limit  of  

abridgment shall have has to be examined in each case.” (emph. supp.)  

81. Consequently,  it  appears that in I.R. Coelho this Court recognized  

that there are different kinds of constitutional amendments. The kinds of  

amendments whereby laws are placed in the Ninth Schedule only enjoy a  

“fictional immunity” and they would have to be tested by using the direct  

impact  and  effect  test  i.e.,  “rights  test”  or  even  the  essence  of  each  

fundamental  right  that  has  been  deemed  to  be  a  part  of  the  basic  

structure. The laws placed in the Ninth Schedule are ordinarily enacted,  

and  then  placed  in  Ninth  Schedule  by  a  constitutional  amendment,  

simpliciter, and enjoy only a “fictional immunity” pursuant to Article 31-B.  

This  is  in  contrast  to  the  situation  where  a  Constitutional  amendment  

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effectuates changes in the main provisions of the Constitution, particularly  

in Part III. In such a constitutional amendment, the “essences of rights”  

test used in M. Nagaraj, wherein the essences of the rights are identified  

across  entire  equality,  freedom  and  judicial  review  codes,  i.e.,  “over-

arching principles”  of  such codes,  and then the particular  Constitutional  

amendment  is  evaluated as  to  whether  it  completely  changes  the very  

“identity” of the entire Constitution itself. Those “over-arching principles”  

are what gives the Constitution its identity, and when they are destroyed  

would the identity of the Constitution have been changed completely.

82. This is made very clear by what this Court in I.R. Coelho perceived to  

be the status of the nature of immunity granted by Article 31-B:  “Article  

31-B gives validation based on fictional immunity. In judging the validity of   

constitutional amendment” i.e., the amendment that places a state law in  

the Ninth Schedule “we have to be guided by the impact test.” (see para  

149) “The basic structure doctrine requires the State to justify the degree  

of  invasion  of  fundamental  rights…”  Further  on  in  para  150  the  Court  

concludes “The result of the aforesaid discussion is that the constitutional   

validity of the Ninth Schedule laws can be adjudged by applying the direct   

impact  and  effect  test  i.e.,  rights  test,  which  means  the  form  of  an  

amendment is not the relevant factor, but the consequences thereof.”  

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83. The  above  cited  paragraph  lends  further  support  to  our  earlier  

observation that this Court in I.R. Coelho has made an essential distinction  

between  the  kinds  of  constitutional  amendments  that  are  effected  by  

placement  of  State  laws  in  the  Ninth  Schedule  versus  the  kinds  of  

constitutional amendments that change aspects of the Constitution itself.  

This is further supported by the fact that in para 133 the Court recognized  

that the laws placed in the Ninth Schedule do not become a part of the  

main  body  of  the  Constitution,  and  that  they  become  a  part  of  Ninth  

Schedule and “derive validity on account of  the exercise undertaken by  

Parliament to include them… This exercise has to be tested every time it is  

undertaken”.  Secondly,  it  must  also  be  noticed,  that  state  legislatures  

cannot amend the constitution. It was conclusively held in I.R. Coelho, in  

para  148,  that  “fictional  validation  based  on  the  power  of  immunity  

exercised  by Parliament  under  Article  368 is  not  compatible  with  basic   

structure doctrine and, therefore, the laws that are included in the Ninth  

Schedule have to be examined individually for determining whether the  

constitutional amendments by which they are put in the Ninth Schedule   

damage or destroy the basic structure of the Constitution.” This was so  

because post Keshavananda decision, this Court had specified that some of  

the fundamental rights are also a part of the basic structure because of  

their importance. Consequently, a direct impact and effect test i.e., “rights  

test” and “essence of right” i.e., the essence of the fundamental right that  

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has been affected has to be conducted in the case of laws included in the  

Ninth  Schedule  by  virtue  of  the  constitutional  amendments,  simpliciter,  

whereas  with  respect  to constitutional  amendments  of  an article  in  the  

Constitution  itself  had to  be  tested in  accordance  with  the  essences  of  

rights i.e., “over-arching principles” test as enunciated in M. Nagaraj. This  

is further borne out by sub-para (i) of paragraph 151 cited earlier when  

read with para 142, and taking the entire judgment in I.R. Coelho into  

account.  

84. A  few observations  are  merited  with  regard  to  the  very  carefully  

crafted principles laid down in the sub-para (i) of para 151 in I.R. Coelho.  

The first point is that a law that abrogates or abridges rights guaranteed by  

Part III may or may not violate the basic structure. This means that there  

could be laws that could abrogate some fundamental rights in Part III, and  

yet may not lead to a violation of the basic structure doctrine. The second  

sentence  in  sub-para (i)  states  emphatically  that  if  a  law abrogates  or  

abridges a fundamental right and also violates the basic structure then it  

must be set aside. At this stage it is not yet clear whether the law is a  

constitutional  amendment  exercised  under  Article  368  to  make  an  

amendment to the main body of the constitutional text, or the law is an  

amendment that places laws in the Ninth Schedule, whereby such laws in  

the Ninth Schedule do not become a part of the Constitution as such. That  

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clarification comes from the next sentence: “The validity or invalidity would  

be tested on the principles  laid  down in this  judgment”.  That  sentence  

clearly indicates that the same has to be determined in accordance with  

the  principles  laid  down  in  the  entire  judgment  and  not  just  in  the  

conclusion. That principle was unequivocally laid down in para 142 that had  

been  cited  earlier,  which  recognizes  that  the  test  of  Constitutional  

amendments on the anvil of the basic structure doctrine would have to be  

in accordance with the test delineated in M. Nagaraj.

85. In  light  of  the  above discussion,  we are  of  the  opinion  that  it  is  

impermissible for us to apply the direct impact and effects test to evaluate  

whether clause (5) of Article 15 provisions with respect to admissions to  

unaided non-minority educational  institutions violate the basic structure.  

By no stretch of imagination could the provisions of Clause (5) of Article 15  

be deemed to be so wide as to eliminate an entire chapter of fundamental  

rights, or permit complete evisceration of even the freedom to engage in  

one of the occupations of the many occupations guaranteed by clause (g)  

of  clause (1) of  Article  19.  The correct  test  would be the “essences of  

rights”  test,  i.e.,  the  “over-arching  principles”  test  as  enunciated  in  M.  

Nagaraj24, to which we turn below.

24 (2006) 8 SCC 212

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86. In M. Nagaraj, Kapadia J., (as he then was) speaking for the Court,  

recognized that one of the cardinal principles of constitutional adjudication  

is that the mode of interpretation ought to be the one that is purposive and  

conducive  to  ensure  that  the  constitution  endures  for  ages  to  come.  

Eloquently, it was stated that the “Constitution is not an ephemeral legal  

document embodying a set of rules for the passing hour”. In M. Nagaraj  

this Court recognized that fundamental  rights are not those which exist  

only by virtue of the State recognizing them to be so, but rather that the  

Constitution transcribes them as limitations on the power of the State. This  

would  mean  that  not  merely  or  solely  are  the  negative  rights  to  be  

conceived as natural, given and pre-existing, but the positive rights, which  

cast  an obligation on the State to achieve egalitarian and social  justice  

objectives, that behoove to the benefit of individuals and groups would also  

have  to  be  recognized  as  natural,  given  and  pre-existing.  It  is  also  

recognized that the content of the fundamental right granted to a citizen  

has to be determined by the judiciary; and variations effectuated by the  

State have to meet the test of reasonableness as enunciated by this Court  

in Minerva Mills, which effectively set aside the narrow construction of A.K.  

Gopalan v State of Madras25 that as long as the variation and the extent of  

such variation of a granted fundamental  right is  effectuated by “law” it  

could not be questioned. However, it was also recognized that the judiciary  

cannot use a narrow and pedantic exposition of the text of the fundamental  25 1950 SCR 88

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right to determine the contents thereof. Further, the Court in M. Nagaraj  

recognized  that  the  standard  of  judicial  review  of  a  constitutional  

amendment, on the touchstone of the doctrine of the basic structure, is an  

entirely different exercise than review of state legislation with respect to its  

impact on a specific fundamental right. Analysing the rationale and mode  

of analysis of the Court in S.R. Bommai v. Union of India26, it was stated, in  

para  23,  that  “it  is  important  to  note  that  the  recognition  of  a  basic  

structure in the context of amendment provides an insight that there are,   

beyond the words of particular provisions, systematic principles underlying  

and connecting the provisions of the Constitution. These principles  give  

coherence  to  the  Constitution  and  make  it  an  organic  whole….  These  

principles  are  part  of  constitutional  law even if  they  are  not  expressly   

stated in the form of rules. An instance is the principle of reasonableness   

which connects Article 14, 19 and 21. Some of these principles may be so  

important and fundamental, as to qualify as “essential features” or part of   

the “basic structure” of the Constitution, that is to say, they are not open   

to  amendment.  However,  it  is  only  by  linking  provisions  to  such  

overarching principles that one would be able to distinguish essential from  

less  essential  features  of  the  Constitution.”  (emphasis  added).  It  was  

further  specified  that  certain  principles,  such  as  federalism,  socialism,  

secularism  and  reasonableness  “are  beyond  the  words  of  a  particular  

26 (1994) 3 SCC 1

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provision.  They  are  systematic  and  structural  principles  underlying  and  

connecting various provisions of the Constitution.”

87. The modality of the “essences of rights test” was enunciated in para  

25 of M. Nagaraj as follows: “ In order to qualify as an essential feature, it   

must be first established that the said principle is a part of constitutional   

law binding on the legislature. Only, thereafter, is the second step to be  

taken, namely whether, whether the principle is so fundamental as to bind  

even the amending power of Parliament i.e., to form a part of the basic   

structure…..  To  sum up:  in  order  to  qualify  as  an  essential  feature,  a  

principle is to be first established as part of constitutional law and as such  

binding on the legislature. Only then, can it be examined whether it is so   

fundamental as to bind even the amending powers of Parliament i.e., to   

form part of the basic structure of the Constitution. This is the standard of  

review of constitutional amendments in the context of the doctrine of the  

basic structure.” And further on, in para 26, the Court also recognized that  

the doctrine of basic structure has emanated from the German Constitution  

and  notes  that  in  that  jurisprudence  the  overarching  principle  that  

connects, and informs all other values is the principle of human dignity.  

With respect to our Constitution it was noted that ”axioms like secularism,  

democracy, reasonableness, social justice, etc., are over-arching principles  

which  provide  linking  factor  for  the  principle  of  fundamental  rights  like   

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Article 14, 19 and 21. These principles” i.e., the over-arching principles,  

“are beyond the amending power of Parliament.” (emph. suppd.)

88. From the above we can glean that evaluation of whether a particular  

amendment has amended those “over-arching principles” is  the test  for  

basic structure. It is not the specific instances of expression of contents of  

a fundamental right, as stated by the courts prior to an amendment which  

are to become the anvil of the test of basic structure when the amending  

power is exercised and a main element of the provisions of the Constitution  

is altered. Rather, the courts have to be careful in assessing whether those  

over-arching  principles  themselves  are  abrogated.  By  no  stretch  of  

imagination could one claim that truncation of one of the activities that  

were deemed to have been one of the many essential features of one of  

the occupations of the many occupations that are guaranteed by one of  

clauses  of  the freedom code,  by  itself  could  constitute  an over-arching  

principle, and further that such a principle has been abrogated. It is not the  

change in the identity of any one element of the conspectus of activities of  

one occupation in a plethora of occupations that itself forms a part of the  

many different kinds of freedoms that leads to the violation of the basic  

structure  doctrine;  but  rather  whether  the  over-arching  principles,  that  

connect one fundamental right to the other that are so abrogated as to  

change  the  very  identity  of  the  Constitution  which  is  the  true  test  to  

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evaluate  whether  a  constitutional  amendment  has  violated  the  basic  

structure doctrine. In this regard, the Court in M. Nagaraj further goes on  

to pithily state that the standard to be applied in evaluating whether an  

amendment has also modified the over-arching principles, that inform each  

and every fundamental right and link them, is to find whether because of  

such a change we have a completely different constitution. In particular,  

summarizing the various opinions in Keshavananda Bharati27, it was stated:

“To conclude, the theory of basic structure is based on the  concept  of  constitutional  identity.  The  basic  structure  jurisprudence  is  a  preoccupation  with  constitutional   identity…. The word “amendment” postulates that the old  Constitution survives without a loss of its identity despite  the  change  and  it  continues  even  though  it  has  been  subjected  to  alteration.  This  is  the  constant  theme  of  opinions in the majority decision in Keshavananda Bharati.   To destroy its identity is to abrogate the basic structure of  the Constitution..…… The main object behind the theory of   constitutional  identity  is  continuity  and  within  that  continuity of  identity,  changes are admissible  depending  upon  the  situation  and  circumstances  of  the  day.”  (emphasis added, para 28).  

89. The prevention of destruction of the “constitutional identity” is the  

chief  rationale  in  using  the  basic  structure  doctrine  in  instances  of  

constitutional amendment such as the one we are concerned with in the  

instant matter. Constitutional identity, and continuance of such an identity  

are the primordial issues, and the identity ought not to be destroyed. Often  

27. (1973) 4 SCC 225  

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a problem is encountered with issues of identity. The issue of change in  

identity,  and  debates  about  it  can  take  extremely  abstract  and  

metaphysical form as with regards to the Ship of Theseus28 or the Theseus’  

Paradox. In the classical narrative, in the metaphysical speculations about  

the paradox, reference is with respect to the ship in which Theseus, and  

other youth of Athens, returned from Crete having killed a minotaur that  

demanded sacrifice of Greek youth every year. Because the ship was of  

such  importance,  Athenians  preserved  it  in  the  harbor  for  generations,  

replacing its boards that had become dilapidated by new ones, where at  

one point  all  the boards  had been replaced.  This  apparently  led to the  

fertile Greek minds, prone as they were to metaphysical speculation, to ask  

whether the ship, after every part had been replaced by another newer  

part, was indeed the same ship or not. For the formalists, the identity had  

changed because none of the original  parts were there; and in fact the  

extreme amongst them claimed that the identity had changed when the  

first part was itself changed. For the functionalists, the ship was identically  

the same because the parts that replaced the worn out parts were of the  

same quality, shape and size and performed exactly the same functions as  

previously  specified.  In  either  case,  both  the  puritanical  originalists  

delighted in the squabble without there being any pragmatic resolution.

28 Plutarch: Theseus, trans. John Dryden.

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90. Unfortunately,  we  as  constitutional  adjudicators  do  not  have  the  

luxury  of  facile  metaphysical  speculations,  and  imposing  conclusions  

arrived thereupon on this country, by ignoring the practical impact of the  

ship and the larger purposes that it is supposed to serve. Indeed our ship,  

the Constitution, was never intended to remain in the harbour and was  

intended to set sail. The narrative of our Ship of Theseus takes a different  

form for us.

91. We liken our Constitution to the Ship of Theseus, with the difference  

that the ship itself has been provided with sufficient wood, and tools to  

fashion new boards, and it was to actually set sail. The Ship of our Nation,  

the Constitution, set sail on its journey in 1950, on uncharted oceans of  

time, circumstances and challenges. We set sail with a ship as it was then  

designed, nevertheless knowing that certain features were quintessential to  

being a ship that could sail such oceans; and we set sail towards a target,  

almost like Columbus, with the understanding that sailing in a particular  

direction  would  get  us  to  a  particular  destination.  We  even  promised  

ourselves,  that  notwithstanding  our  prior  history  of  bickering,  of  

degradation of humans amongst us by ascribed status, and of economic  

poverty, we would have, by the time of reaching our goal, ensured that  

certain  invaluable  qualities,  such  as  dignity,  fraternity,  security  and  

integrity of our nation-state, inform all aspects of social order.  In fact the  

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achievement of those qualities was to be the goal. The directions we were  

given were that if  we strive to achieve,  in actual  fact,  JUSTICE, social,  

economic and political; LIBERTY of thought, expression, belief, faith and  

worship; and EQUALITY of status and opportunity; within the context of  

organizing our polity as a secular, socialist and a democratic republic, and  

the State itself, necessarily follows certain principles of policy, we would  

achieve those goals.  We were enjoined to roam the high seas until  we  

achieved a state of acceptable achievement of those goals, neither knowing  

the length of time nor the length of that journey. In fact we also knew, that  

achievement  of  those  goals  was  never  going  to  be  a  matter  of  some  

quantitative assessment of those goals, but always a maintenance of the  

path towards, and sustaining what we may have already achieved. We also  

knew that along that journey, many of the boards, and indeed even certain  

parts  of  the  main  structure  may  appear  to  be  or  actually  become  a  

detriment to our progress. Hence, we were also given liberty to change  

some of those parts, in terms of replacing those parts with exact same  

ones, or mostly similar ones, or even radically differently designed ones.  

The caveat was that, if the changes were such that the destination could  

not be reached, or that the motive force for powering the journey would  

become truncated, or  debates could not be conducted within the settled  

principles of civility, or that on the course of that journey too many were  

actually getting pushed off the ship, or that the changes were such that the  

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ship would turn into a tiny raft, in which the people on the margins would  

necessarily get pushed into the ocean, etc.,  the ship of our nation, the  

Constitution,  would  sink.  If  inappropriate  changes  were made,  the  ship  

would sink; and if the appropriate changes were to not be made the ship  

would  sink.  Neither  wrong  action,  nor  abstinence  from  action  was  

permissible.

92. In  this  regard,  this  Court,  charged  with  the  responsibility  of  

ultimately interpreting the design of the structure of that ship, stated thus:

“[C]onstitutional  adjudication  is  like  no  other  decision- making.  There  is  a  moral  dimension  to  every  major  constitutional  case:  the  language  of  the  text  is  not  necessarily  a  controlling  factor.  Our  Constitution  works  because of its generalities; and because of the good sense  of  the  judges  when  interpreting  it.  It  is  that  informed  freedom of  action of  judges that  helps  to preserve and  protect our basic document of governance.” (para 30 of M.  Nagaraj).

93. Proceeding on the rationale as enunciated in the cited paragraphs,  

this Court in M. Nagaraj,  then enunciated that the “theory of the basic  

structure  is  based  on  the  principle  that  a  change  in  a  thing  does  not  

involve its destruction and destruction of a thing is a matter of substance   

and not of form. Therefore one has to apply the principle of over-arching  

principle  to  be  gathered  from the  scheme and  the  placement  and  the  

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structure of an article in the Constitution. For example, the placement of   

Article 14 in the equality code; the placement of Article 19 in the freedom  

code; the placement of Article 32 in the code giving access to the Supreme  

Court”.  

94. Yet, the question remains? How do we discern whether a particular  

aspect is a part of the basic structure or not? In M. Nagaraj, this Court  

reaffirmed the working test laid down by Chandrachud J., in Indira Nehru  

Gandhi:

“For  determining  whether  a  particular  feature  of  the  Constitution is  a part of  the basic structure, one has to  perforce to examine in each individual case the place of  the particular feature in the scheme of our Constitution, its   object and purpose, and the consequences of its denial on  the  integrity  of  the  Constitution  as  a  fundamental   instrument of country’s governance.”

95. In  this  regard,  it  was  noted  in  M.  Nagaraj  that  concepts  like  

“equality”,  “representative  democracy”  etc.,  are  delineated  over  various  

articles. “Basically Part III of the Constitution consists of equality code, the  

freedom code and the right to move the courts. It is true that equality has   

several facets. However, each case has to be seen in the context of the  

placement of an article which embodies the foundational value of equality.”  

96. Two consequences follow from the above: our earlier assessment,  

that the test we are to apply in instances like the addition of clause (5) to  

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Article  15,  is  not  about  truncation  of  one  activity  that  was  previously  

deemed by this court to be one of the essential features of one of the many  

occupations that are a part of one of the many freedoms guaranteed in the  

freedom code; and that we not only have to assess the negative impact,  

but  also  the  positive  impact  of  an  amendment.  This  follows  from  the  

realization that while we may classify aspects important for that ship to sail  

towards its goals into neat analytical categories, the ship itself, and the  

nation it carries functions in accordance with the action and reaction of  

each  category  upon  other  categories.  Consequently,  we must  take  into  

account the fact that the changes that are made may while truncating one  

small  element,  may  also  be  strengthening  many  other  elements,  and  

thereby strengthening the very basic structure of the Constitution. Thus  

care  needs  to  be  exercised  to  avoid  rhetorical  flourishes  about  the  

importance of one small activity that may be truncated in order to achieve  

larger  purposes.  Obviously,  some small  activities  could be of primordial  

importance.  Some  rights  may  be  important,  but  not  of  primordial  

importance, and their importance has to be assessed in terms of their place  

in the overall context of constitutional values, and goals.  

97. If indeed one essential activity of the many essential ones that form  

the freedom to engage in one of the occupations of the many occupations  

that  are  a  part  of  the  many freedoms guaranteed  by the  Constitution,  

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conflicts  with  an amendment  that  intends  to  strengthen the process  of  

achievement of one of the main navigational tools and thereby the goals of  

the  nation-state  itself,  should  such  an  amendment  be  declared  to  be  

unconstitutional and against the basic structure? Shouldn’t one also look at  

the damage that such a declaration can cause to many of the other basic  

features of the Constitution, and also the loss of diverse strengths that  

such an amendment is likely to impart to many other essential or basic  

features  of  our  Constitution?  We  opine  that  by  not  undertaking  an  

assessment of such factors we would almost certainly lead to erroneous  

judgments that would destroy the basic structure of the Constitution. In  

the present context what is involved is a judicial review of an amendment  

to the Constitution that seeks to strengthen the egalitarian aspects of our  

social  order.  Consequently,  the  conflict,  in  the  instant  case,  has  to  be  

evaluated in terms of whether disallowing the amendment might damage,  

significantly, the prospects of promoting intrinsic and inherent parts of our  

equality code – the egalitarian and social justice components – that are  

essential elements of our basic structure. Such a test would give us a more  

nuanced  appreciation  of  how  setting  aside,  as  violative  of  the  basic  

structure,  the  provisions  of  clause  (5)  of  Article  15  with  respect  to  

admissions to non-minority unaided educational institutions, would impact  

our Constitution, as a fundamental instrument in country’s governance.  

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98. Consequently, in evaluating whether the provisions of clause (5) of  

Article 15 with respect to unaided private educational institutions violate  

the basic structure doctrine the questions to carry out the test would be as  

follows:  (1)  the place  of  clause  (5)  in  Article  15 in  the  context  of  the  

equality code; (2) its importance with respect to the Constitution as an  

instrument of governance, including the mandatory, though not justiciable,  

provisions of Directive Principles of State Policy, and the goals of ensuring  

dignity for all  citizens,  with fraternity amongst groups of them, thereby  

ensuring the unity and integrity of the nation; and (3) an assessment of  

the importance of the right of the educators to only admit students based  

on  their  choice,  and  thereby,  also  possess,  the  consequential  right  to  

disregard  the  impact  of  social,  educational,  cultural  and  economic  

disadvantages suffered by groups and individuals in those groups, in terms  

of access to higher education, and the damage that such a disregard might  

do to the very purpose of the occupation, and the broader objectives of the  

nation that such an occupation is to serve.  

99. It is now a well settled principle of our constitutional jurisprudence  

that Article  14 does not merely aspire  to provide for  our  citizens mere  

formal equality, but also equality of status and of opportunity. The goals of  

the nation-state are the securing for all of its citizens a fraternity assuring  

the dignity of the individual and the unity of the nation. While Justice –  

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social, economic and political is mentioned in only Article 38, it was also  

recognized that there can be no justice without equality of status and of  

opportunity (See M. Nagaraj). As recognized by Babasaheb Ambedkar, at  

the moment that our Constitution just set sail, that while the first rule of  

the  ship,  in  the  form of  formal  equality,  was  guaranteed,  inequality  in  

terms of access to social and economic resources was rampant and on a  

massive scale, and that so long as they individually, and the social groups  

they  were  a  part  of,  continue  to  not  access  to  social  and  economic  

resources that affords them dignity, they would always be on the margins  

of the ship, with the ever present danger of falling off that ship and thereby  

never partaking of the promised goals of that ship. Babasaheb Ambedkar  

with  great  foresight  remarked  that  unless  such  more  fundamental  

inequalities, that foster conditions of injustice, and limit liberty of thought  

and of conscience, are eradicated at the earliest, the ship itself would be  

torn apart.  

100. In this regard, it was recognized early on as we, as a nation-state,  

set sail that while revolutionary change, using the force and might of the  

State, might actually bring about the realization of that state of equality  

much faster. However, it was also recognized that the violence it would  

unleash could potentially destroy our nation-state itself, and the end goal  

may be the creation of  a  State  that  would  not  be conducive  for  other  

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cherished values  of peace, harmony, co-existence, and a democratic set  

up in which reasoned and reasonable argument and debate would inform  

our social, political and economic choices. Some may say that this was a  

compromise, that in fact the framers of our constitution made the wrong  

choice, and that we should have opted for a revolutionary mode of change,  

if  necessary by shedding of bloodshed of our own people.  Some others  

argue that we should have opted for a pure market economy, right from  

the beginning, so that the inefficient governmental regulations would not  

have hindered our economic progress. However, they seldom have answers  

as to when, or over what time frame could it be conceived that a state of  

equality  of  status  and  opportunity,  and  social,  economic  and  political  

justice would inform all walks of our lives, so that each and every citizen  

would be enabled to lead a life with dignity, that both promotes fraternity  

and also is promoted by such a fraternity, and of active participation, to  

the fullest extent of their natural talents, to participate in full measure in  

the  making  of  choices,  social,  political  and  economic.  Nor  do  the  free  

market proponents answer whether the operation of the laissez-faire free  

markets  would  not  lead  to  a  perpetuation  of  ever  widening  disparities  

between  the  haves  and  the  have-nots.  Historical  human  experience  

militated against a trust in any such answer even if it were given.

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101. Consequently, the State was given the responsibility to balance the  

exigencies  of  the  needs,  between  social  justice  and  formal  equality,  

between  a  command  and  control  economy  and  a  private  sector  with  

freedom to make its choices within a regulated environment, keeping in  

mind the larger needs of the nation, between the imperative to promote  

economic  growth,  and  development  in  its  classical  sense,  in  which  the  

progress  of  people  was  measured  on  all  dimensions  of  human dignity.  

Indeed, these imperatives of statecraft, of governance of the nation state,  

were even transcribed into fundamental, though non-justiciable, Directive  

Principles of State Policy. The fact that they were made non-justiciable was  

not to deny their absolute essentiality, but rather that the legislatures, and  

the executive under the supervision of the elected representatives, were  

best  placed to  make choices  with  regard  to  issues  of  policy,  while  the  

judiciary endowed with the responsibility of interpreting and upholding the  

Constitution. An important and particular aspect of our Constitution that  

should always be kept in mind is that various aspects of social justice, and  

an egalitarian social order, were also inscribed, not as exceptions to the  

formal content of equality but as intrinsic, vital and necessary components  

of the basic equality code itself. To the extent there was to be a conflict, on  

account of scarcity, it was certainly envisaged that the State would step in  

to ensure an equitable distribution in a manner that would be conducive to  

common  good;  nevertheless,  if  the  state  was  to  transgress  beyond  a  

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certain  limit,  whereby  the  formal  content  of  equality  was  likely  to  be  

drastically abridged or truncated, the power of judicial review was to curtail  

it.  However,  as  long  as  the  policy  initiatives  of  the  State  were  in  

consonance  with  principles  of  equity  and  justice  inherent  within  the  

equality  code,  and  indeed  even  the  freedom  code,  via  Article  21‘s  

guarantee of the right to life, and for promotion of freedom of expression  

and  thought,  especially  to  promote  excellence  in  our  debates  and  

arguments  in  the  political  sphere  so  that  democratic  richness  could  be  

better served, or were framed in pursuance of the Directive Principles of  

State Policy, that were based on reasonable and intelligible classifications,  

the courts were to have no further place in entering the field of  policy  

choices.  The courts  could of course,  also,  impose positive constitutional  

obligations  on  the  State,  where  the  abnegation  of  those  positive  and  

affirmative obligations, encoded within fundamental rights itself, were so  

gross as to constitute a fraud on the face of the Constitution.

102. Given the magnitude of the task of the State, and immense human  

tragedies  that  could  continue  to  occur  unabated  or  even  increase,  and  

conditions  of  inequalities  could  intensify  even  further,  beyond  the  

unconscionable levels at which they already are, it can only be surmised  

that the power of the State to frame policies in furtherance of the national  

goals, including the goals of social justice, achievement of human dignity of  

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all people and groups of people, improved access to better articulation of  

thoughts  and  aspirations  by  individuals  and  groups  of  people  in  the  

democratic processes and in social choices made in their communities, and  

equality  of  status and opportunity  with  respect  to social,  economic  and  

physical resources i.e., all material resources that are useful for productive  

activities,  as granted and used within the limits of the constitutional vision  

and  design,  to  achieve  such  tasks  to  be  commensurate,  is  indeed  an  

essential  element of governance.  Derogation of such powers,  through a  

whittling down by judicial fiat, below the level at which the Constitutional  

structure, provisions and vision provides would necessarily be an alteration  

of the very identity of our Constitution.      

103. In a recent decision, GVK Industries Ltd v. ITO29 by a Constitutional  

Bench, it was held:

“One of the foundational elements of the concept of basic  structure is it would give the stability of purpose, and the   machinery  of  Government  to  be  able  to  pursue  the  constitutional vision into indeterminate and unforeseeable  future…. Our Constitution charges  various organs of  the  State  with  affirmative  responsibilities  of  protecting  the  interests  of,  the  welfare  of  and  security  of  the  nation.   Legislative  powers  are  granted  to  enable  the  accomplishment  of  the  goals  of  the  nation…….  Consequently, it is imperative that the powers so granted  to  various  organs  of  the  State  are  not  restricted  impermissibly by judicial fiat such that it leads to inabilities   

29 (2011) 4 SCC 36

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of  the  organs  of  the  State  in  discharging  their  constitutional  responsibilities.  Powers  that  have  been  granted, and implied by, and borne by the constitutional   text have to be perforce admitted…”

104. To  be  sure,  powers  granted  to  the  State  are  not  unlimited,  and  

indeed our constitutional jurisprudence specifies that Part III is one such  

zone of limitation. The rigour and discipline of fundamental rights, granted  

to  citizens are to be the checks on the power of the State. Fundamental  

rights  are  indeed  vital  for  the  survival  of  our  society,  and  provide  

guarantees that protect our citizens against totalitarianism, are conducive  

for full expression of human creativity, and in fact foundational for human  

dignity. Further, the substance of justice is inscribed into such fundamental  

rights, that are both substantive and procedural and are available to all the  

citizens, along with powers granted to the State to realize social justice and  

real  and “in  fact”  equality  of  status and opportunity  for  those who are  

disadvantaged. Consequently, it cannot be taken to mean that the zone of  

limitation would then operate to frustrate  the obligations of the State, to  

achieve goals of social justice and egalitarian order, by placing primordial  

importance  on formal equality and freedom. Formal rights of some power  

cannot become the foundation to whittle away  powers that are necessarily  

implied in order to achieve national goals. The question is of balance, and it  

is the act of balancing between the compulsions cast upon the State by the  

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moral, political and legal imperatives of the status of vast chunks of our  

people in disadvantaged and deprived positions that could only be deemed  

to  be  egregious  and  unconscionable  by  any  notions  of  empathetic  

conscience,  and  the  imperatives  that  all  the  rest  also  be  provided  

meaningful levels of protections guaranteed by fundamental rights. It is not  

without reason that Fundamental Rights and Directive Principles of State  

Policy  along  with  the  grant  of  power  to  the  State  to  achieve  intrinsic  

egalitarian and social justice aspects inscribed on many of the fundamental  

rights themselves, that have been called the twin wheels of the chariot of  

national progress. In this regard it has been held in Keshavananda that  

harmony  between  Directive  Principles  of  State  Policy  and  Fundamental  

Rights is one of the most important of elements of the basic features or  

structures of the Constitution.

105. In  this  respect,  the  placement  of  clause  (5)  of  Article  15  in  the  

equality  code,  by  the  93rd Constitutional  Amendment  is  of  great  

significance. It clearly situates itself within the broad egalitarian objectives  

of  the  Constitution.  In  this  sense,  what  it  does  is  that  it  enlarges  as  

opposed to truncating, an essential and indeed a primordial feature of the  

equality code. Furthermore, both M. Nagaraj and Ashoka Kumar Thakur  

stand for the proposition that enlargement of the egalitarian content of the  

equality code ought not to necessarily be deemed as a derogation from the  

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formal equality guaranteed by Article 14, 15(1) or 16(1). Achievement of  

such  egalitarian  objectives  within  the  context  of  employment  or  of  

education, in the public sector, as long as the measures do not truncate  

elements of formal equality disproportionately, were deemed to be inherent  

parts of the promise of real equality for all citizens. As stated succinctly in  

M.  Nagaraj,  it  is  an  issue  of  proportionality.  “Concept  of  proportional  

equality  expects  the  State  to  take  affirmative  action  in  favour  of  

disadvantaged  sections  of  the  society  within  the  framework  of  liberal  

democracy” and further that “[U]nder the Indian Constitution, while basic  

liberties are guaranteed and individual initiative is encouraged, the State  

has got the role of ensuring that no class prospers at the cost of other class  

and no person suffers because of drawbacks which is not of his but  

social.”  With  regard  to  distribution  of  social  opportunities  and  social  

benefits, Kapadia J. (as he then was) notes that some define “social justice  

in  terms of  rights”,  and  some others,  like  Friedrich  Hayek  in  terms of  

“desert” without any regard to the relative advantages or disadvantages as  

between individuals, and some others, socialists, on the basis of needs.  

With regard to these three different rationale, this Court recognized that all  

three  have  to  be  accommodated  under  the  equality  code,  with  those  

fulfilling the “desert based” criteria located under formal equality zone, and  

those  fulfilling  the  “need  based”  or  the  “disadvantaged  based”  criteria  

under the zone covered by proportional equality. To this we need to add  

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another  important  point.  The  critical  aspect  of  the  authenticity  of  

constitutional claims of the disadvantaged, on whose behalf State exercises  

its power, is the fact that it is social circumstances which have prevented  

those  individuals  from  performing  to  their  full  potential,  and  thereby  

compete on a level playing field with those who might satisfy the “desert  

based”  criteria.  In  fact  the  very  notion  that  unequals  ought  not  to  be  

treated as equals is also founded on the notion that those with lesser or  

lower  background  opportunities  could  not  be  expected  to  match  the  

performance of those with much better opportunities. The fact that it is the  

State  that  seeks  to  enhance  through  its  policies,  such  rights  of  

disadvantaged, because it has the duty to ensure their realization, cannot  

be taken to mean that every element of every individual right of the less  

disadvantaged could be used to frustrate the realization of those rights.

106. A  brief  historical  excursus,  into  our  constitutional  jurisprudence,  

would  also  be  necessary  at  this  stage  to  realize  that  the  egalitarian  

conception  is  inbuilt   in  the  equality  code.  In  M.R.  Balaji  v  State  of  

Mysore30,  Article  15(4)  was  treated  as  an  exception  to  Article  15(1).  

However, in Devadasan v. Union of India31, decided a year later, the Court  

found that reservations to appointments and posts would not violate Article  

14.  Devadasan,  followed  the  ruling  of  M.R.  Balaji  and  held  that  

30 AIR 1963 SC 649 31 AIR 1964 SC 179

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excessiveness  of  reservations  under  Article  16(4)  is  an  issue  to  be  

recognized.  Subba  Rao,  J,  in  his  dissenting  opinion  opined  that  Article  

16(4) was not an exception but “preserved a power untrammeled by the  

other provisions of the Article.” The decisive break came in State of Kerala  

v. N.M. Thomas32 in which Article 16(4) was held to not be an exception to  

Article  16(1),  laying  down  the  principle  that  State  action  in  pursuit  of  

egalitarianism cannot in principle be seen as antithetical to broader codes  

of  equality,  but  rather  a  means  to  realize  true  equality  of  status  and  

opportunity  amongst  hitherto  excluded  groups.  This  position  found  its  

resounding acceptance in Indra Sawhney v Union of India33, in which it was  

held in no uncertain terms that egalitarianism is an intrinsic element of  

conception of equality under Articles 14.

107. A purely technical argument may be made that this Court in Indra  

Sawhney had reflected upon egalitarianism in the context of Article 16(4)  

and public employment, and hence ought not to be seen as a part of our  

constitutional jurisprudence with respect to admissions to private unaided  

educational institutions. This may be a case of splitting hairs to deny the  

validity  of  an  over-arching  principle.  In  countless  cases,  involving  the  

private sector,  this Court has held that legislation to achieve social  and  

economic justice cannot be held to be a violation of fundamental rights.  

32  AIR 1976 SC 490 33 (1992) Supp (3) SCC 217

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(See: State of Karnataka v Ranganatha Reddy34) What they could be and  

ought to be tested on was the anvil of reasonableness of classification, and  

extent of intrusion, where the Constitution itself did not specifically provide  

for untrammeled power to completely eliminate the private sector from a  

particular field of activity. This Court’s decisions in M. Nagaraj, and equally  

importantly,  Ashoka  Kumar  Thakur,  have  unequivocally  held,  based  on  

Indra Sawhney, that the concept of egalitarianism is an essential and vital  

element of the equality code, and in Ashoka Kumar Thakur that principle  

was  applied  in  the  context  of  education.  The  Court  refused,  in  Ashoka  

Kumar Thakur, to look at whether clause (5) of Article 15 as applied to  

non-minority private unaided colleges would violate the basic structure, on  

the ground that no private unaided college was before it. However, that  

does not mean that the principles enunciated in Ashoka Kumar Thakur,  

that egalitarianism was an intrinsic part of our equality code with respect to  

the field of education could be limited only with respect to public and aided  

institutions.

108. We  opine  that  the  same  principles  which  this  Court  found  to  be  

applicable in finding egalitarianism to be a part of the equality code, at the  

level  of  being essential  features informing the entire equality  code,  per  

force  have to  also  be  applied  to  the  context  of  private  sector  unaided  

educational  institutions.  When  we  speak  of  egalitarianism  being  an  

34 (1977) 4 SCC 471  

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essential  and  a  necessary  component  of  the  equality  code,  which  is  a  

finding that this  Court  arrived at  in  Indra Sawhney,  M.  Nagaraj  and in  

Ashoka Kumar Thakur, we cannot in the same breath then turn around and  

say that the same concerns, of national purpose, goal and objectives that  

inform the constitutional identity miraculously disappear in the context of  

the private sector. It is indeed true that the extent of State involvement in  

the field of higher education has dramatically declined on account of its  

own  financial  position.  At  least  a  part  of  the  problem  of  the  financial  

situation of the State could be reasonably  linked to increasing privatization  

and liberalization of the economy, and one of the essential elements of that  

process of privatization has been the demand of the private sector that the  

State  reduce  its  deficits,  even  as  tax  rates  were  cut,  by  reducing  its  

involvement in various social welfare activities. This has had an impact on  

the ability of the State to invest as much as it could have in education,  

including higher education. An essential  understanding was that because  

the private sector would expand even in areas such as higher education,  

the  burden  on  the  State  of  providing  such  services  would  decline.  The  

burden of the State does not comprise merely of the burden of its financial  

outlays. The burden of the State obviously also comprises of the positive  

obligations imposed on it, on account of the egalitarian component of the  

equality code, the directive principles of State policy, and the national goals  

of achievement of an egalitarian order and social justice for individuals and  

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amongst  groups  that  those  individuals  are  located  in.  If  the  State  had  

clearly articulated that its goal was to withdraw from such crucial and vital  

fields, such as higher education, and that it was also not expecting the  

private sector to carry any of the burdens of ensuring an egalitarian order  

and realize the goal of social justice in at least some measure, then the  

dimensions of constitutional litigation on that front could very well have  

taken  a  different  shape,  and  questions  about  whether  such  actions  

constitute  a  fraud  on  the  face  of  the  Constitution  could  certainly  have  

gained great salience.

109. Certainly, the State has the power under clause (6) of Article 19, to  

totally or partially exclude the participation of private sector in the field of  

higher education. As TMA Pai stated, having allowed the private sector into  

the  field  of  education,  including  higher  education,  it  would  be  

unreasonable, pursuant to clause (6) of Article 19, for the State to fix the  

fees  and  also  impose  reservations  on  private  unaided  educational  

institutions. Nevertheless,  if  we take into consideration the width of the  

original powers under clause (6) of Article 19, one would necessarily have  

to find that the State would at least have the power to make amendments  

to the Constitution to partially resurrect some of those powers that it had  

possessed  to  control  access  to  higher  education,  and  achieve  goals  of  

egalitarianism and social justice. What the State had done was to allow  

private sector to function in the field of higher education, to supplement  

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the role of the State in the field which has been recognized even in TMA  

Pai. The power of the State to allow such participation of the private sector  

could only have existed if the State had the power to devise policies based  

on circumstances to promote general welfare of the country, and the larger  

public interest. The same cannot be taken to mean that a constitutional  

amendment  has  occurred,  in  a manner  that  fundamental  alteration has  

occurred in the basic structure itself, whereby the State is now denuded of  

its obligations to pursue social justice and egalitarian ideals, inscribed as  

an essential  part of our constitutional identity, in those areas which the  

State feels that even resources in the private sector would need to be used  

to achieve those goals.  The argument  that the policies  of  liberalization,  

privatization and globalization (LPG) have now cut off that power of the  

State are both specious, and fallacious. Such policies are only instances of  

the broader powers of the State to craft policies that it deems to serve  

broader  public  interests.  One  cannot,  and  ought  not  to  deem that  the  

ideologies of LPG have now stained the entire Constitutional fabric itself,  

thereby altering its very identity.

110. In the first place, it is not a completely well accepted principle that  

liberalization, privatization and globalization has led to the welfare or that it  

has been an unalloyed good of everyone. As very prominent thinkers and  

policy  specialists  have  been  arguing  for  nearly  two  decades,  that  the  

unthinking  and  extreme  beliefs  in  LPG  have  led  to  many  deleterious  

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impacts  globally,  cannot  be  ignored.  (See the  work  of  Nobel  Laureate,  

Joseph  Stiglitz:  Globalization  and  its  Discontents35).  Another  Nobel  

Laureate,  Kenneth  Arrow,  and  renowned  economists  such  as  Samuel  

Bowles and Steven Durlauf have also posited that the ideological notions  

that all governmental programs to achieve egalitarian goals are ineffective  

has fundamentally eroded the very culture of nations, and the moral and  

constitutional commitments of the policy makers to pursue such goals, with  

the “dismal prognosis of immutable inequality.”36 Moreover, it is also very  

well  recognized that markets,  instead of eradicating discriminations  and  

disadvantages, may in fact perpetuate the same. (See Cass R. Sunstein,  

“Free  Markets  and  Social  Justice”37,  and  also Reservation  and  Private  

Sector:  Quest for  Equal  Opportunity and Growth,  Ed.  Sukhadeo Thorat,  

Aryama  and  Prasant  Negi)38.  The  falsity  of  the  knee  jerk  beliefs  that  

markets are necessarily efficient, and will necessarily find optimal and just  

solutions for all problems, was again provided by the recent global financial  

crisis.   That  unregulated  laissez  faire  free  markets  would  only  lead  to  

massive  market  failures,  even  with  respect  to  those  aspects  in  which  

markets are supposed to function efficiently, such as wealth generation has  

to be accepted as a fundamental truth. With respect to other social values  

and goals, it has also been shown that the complete evisceration of the  

35 W.W. Norton and Company (2002). 36 Meritocracy and Economic Inequality, Oxford University Press. 37 Oxford University Press (1997) 38 Rawat Publications (2005)

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power of the State to regulate the private sector would lead to massive  

redistributions of incomes, assets and resources in favour of the few, as  

against the multitude, thereby generating even greater inequalities. This  

would also suppress the ability of the State to exercise moral authority,  

and force, to keep competing interests, spread across groups, regions, and  

classes, from degenerating into a war of all against all. The necessity of  

such a role for the State should not be doubted, nor its Constitutional duty  

whittled down. This potential danger, and consequences, of evisceration of  

the role of the State was anticipated by the farmers of our Constitution.  

That is the reason why, the Preamble specifically articulates that ensuring  

the dignity of human beings, and fraternity amongst groups of people, to  

be vital for the integrity and security of the nation.

 111. Article 38 of the Constitution mandates that “the State shall strive to  

promote the welfare of the people by securing and protecting as effectively  

as it may a social order in which justice, social,  economic and political,  

shall inform all the institutions of national life.” This is a clear transcribing  

of a promise made in the Preamble, to all the people of our country, and in  

particular those who were socially disadvantaged, and who continue to be  

disadvantaged, that justice shall inform all institutions of our national life.  

What does Article 38 mean, when it talks about “institutions informing our  

national life”? Clearly higher education, and more particularly professional  

educational  institutions  imparting  education  in  the  medical,  technical  &  

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engineering, scientific, managerial and legal fields, are to be recognized as  

being vital to the national well being, and determine the character of life,  

and  social  order  throughout  the  nation.   Each  and  every  particular  

educational  institution  is  a  part  of  a  large  scale  national  endeavour  to  

educate  our  youngsters.  The  word  “institution”  is  capable  of  many  

meanings. It could be used in a narrow sense; however, it is also used, for  

instance, to refer to a broad class of fields of human and organizational  

endeavours: we talk about press and the media as an institution, we talk  

about legislative field as an institution, we talk about the executive as an  

institution, and indeed we talk about the judiciary, and the organizations  

engaged in the act of dispensing justice, collectively as an institution. We  

talk  about  universities,  and  seats  of  higher  learning,  collectively  as  an  

institution. At this level of generality, certainly the entire field of “higher  

education” is to be conceived as an institution informing our national life.  

The educated youngsters coming out of the portals of our each individual  

college enter into jobs that may require different degrees of discretionary  

judgment, which in turn may also affect the lives of other people, including  

those in socially and educationally disadvantaged groups.  Consequently,  

we have to necessarily hold that Article 38 necessarily includes within its  

conception of “institutions informing our national life”, all institutions that  

perform the role of imparting higher education.

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112. However, we must hasten to add that this conception of social justice  

is to be found not just in Article 38, in part IV of our constitution. The same  

concern for social justice is also reflected in Clause 2 of Article 15 which  

states that: “No citizen shall, on grounds only of religion, race, caste, sex,  

place  of  birth  or  any  of  them,  be  subjected  to  any  disability,  liability,  

restriction  or  condition  with  regard  to  –  (a)  access  to  shops,  public  

restaurants, hotels and places of public entertainment; or (b) the use of  

wells, tanks, bathing ghats, roads and places of public resort maintained  

wholly  or partly  out  of  State funds,  or  dedicated to the use of  general  

public.” Further, Clause 4 of Article 15 specifies that “Nothing in this article  

or  in  clause (2) of  Article  29 shall  prevent  the State from making any  

special  provision  for  the  advancement  of  any socially  and educationally  

backward classes of citizens or for the Scheduled Castes and Scheduled  

Tribes”.

113. The purport of Article 15 (2) can be   gathered from the Constituent  

Assembly debates.  Babasaheb Ambedkar elucidated on the same saying  

that “To define the word ‘shop’  in the most generic term one can think of  

is to state that ‘shop’ is a place where the owner is prepared to offer his  

service to anybody who is prepared to go there seeking his service. ….  

Certainly it will include anybody who offers his services.  I am using it in a  

generic sense. I should like to point out therefore that the word ‘shop’ used  

here is not used in the limited sense of permitting entry. It is used in the  

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larger sense of requiring the services if the terms of service are agreed  

to.”39  In as much as education, pursuant to TMA Pai,  is an occupation  

under sub-clause (g) of clause (1) of Article 19, and it is a service that is  

offered for a fee that takes care of all  the expenses of the educational  

institution  in  rendering  that  service,  plus  a  reasonable  surplus,  and  is  

offered  to  all  those  amongst  the  general  public,  who  are  otherwise  

qualified, then such educational institutions would also be subject to the  

discipline of  clause (2) of  Article  15.  In this  regard, the purport  of  the  

above exposition of clause (2) of Article 15, when read in the context of  

egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and  

read with our national aspirations of establishing a society in which Equality  

of status and opportunity, and Justice, social, economic and political, would  

imply that the private sector which offers such facilities ought not to be  

conducting their affairs in a manner which promote existing discriminations  

and disadvantages.  

There are two potential interpretations of the use of the word “only”  

in clause (2) of Article 1540. One could be an interpretation that suggests  

that the particular private establishment not discriminate on the basis of  

enumerated grounds and not be worried about the consequences. Another  

interpretation could be that the private establishment not just refrain from  

the  particular  form  of  overt  discrimination  but  also  ensure  that  the  

39  Constituent Assembly Debates – Vol. VII.  40 Mahendra P. Singh, “V.N. Shukla’s Constitution of India”, 11th Ed. (Eastern Book Company, 2008)

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consequences  of  rules  of  access  to  such  private  establishments  do  not  

contribute  to  the  perpetration  of  the  unwarranted  social  disadvantages  

associated with the functioning of the social, cultural and economic order.  

Whether sub-clause (a) of clause (2) of Article 15 is self-executory or not is  

irrelevant in the context of reservations. If the State does enact “special  

provisions”  for  the  advancement  of  socially  and  educationally  backward  

classes,  it  does  so  in  order  to  prevent  the  perpetuation  of  social  and  

educational  backwardness  in  certain  classes  of  people  generation  after  

generation.  

114. If a publicly offered service follows a particular rule that achieves the  

same or similar consequences as the proscribed discrimination, and tends  

to perpetuate the effects of such discrimination, then it would violate the  

principle of substantive equality. In the case of admissions to colleges, it is  

an acknowledged fact, in both TMA Pai, and in fact even by Bhandari J., in  

his opinion in Ashoka Kumar Thakur, that the test of merit, based on some  

qualifying examinations or a common entrance test, actually is particularly  

prone to rewarding an individual  who has had access to better schools,  

family lives,  social exposure and means  to coaching classes. This would  

mean  that  many  of  the  youngsters,  who  hail  from  disadvantaged  

backgrounds  are  severely  handicapped  in  demonstrating  their  actual  

talents. This would be even more so in the case of Scheduled Castes and  

Scheduled  Tribes.  Given that  social  and educational,  background of  the  

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parents, and of general community members, has an important bearing on  

how  well  the  youngsters  learn  and  advance,  it  would  only  mean  that  

complete dependence on such tests which do not discriminate and grade,  

in terms of real merit relative to peers in similar circumstances, but on the  

basis  of  so  called  absolute  abilities,  we  would  end  up  selecting  more  

students  from  better  social  and  educational  backgrounds,  thereby  

foreclosing or substantially truncating the possibility of individuals in such  

disadvantaged groups from being able to gain access to a vital element of  

modern life that grants dignity to the individuals, and thereby to the group  

as a whole, both in this generation, and in future generations. In light of  

the specific command of Article 38, of infusing our institutions of national  

life with social justice, we hold that a proper construction of clause (2) of  

Article  15 would in  fact  be to prohibit  a complete dependence on such  

context  (social  and  educational  backwardness)  insensitive  tests.  When  

viewed  against  this  perspective,  it  would  have  to  be  discerned  that  

reservations based on social and educational backwardness would in fact  

promote the selection of those who are truly meritorious amongst  each  

group, on account of their demonstrated ability to be in the higher rungs of  

achievement  within  comparable  situations  of  life’s  circumstances  and  

disadvantages.  Such systems, with the same normative imperatives are  

used in other countries, and in fact more economically successful countries,  

with  a  demonstrated  record  of  immense  scientific  and  technical  

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achievements over the past hundred years: for example, the United States  

of America. Peer group norm referenced grading is extensively used there.  

The  idea  is  simple:  that  given  a  minimal  level  of  achievement  of  

competence,  grading  as  between  similarly  situated  and  provisioned  

individuals would reflect both true talents and also individual variations in  

behaviour such as hard work, diligence, the ability to overcome challenges  

etc.

115. Even if one were to assume that at some conceivable level, some  

youngsters from Socially and Educationally Backward Classes or Scheduled  

castes and Scheduled Tribes are actually relatively less proficient, at the  

entry point, than those belonging to the upper crust of India, there could  

be  other  mitigating  factors.  It  is  perfectly  plausible  to  assume  that  

youngsters who were socially deprived of appropriate scholastic content in  

earlier years, do make it up and narrow the gap over time.41

116. In  addition,  there  are  many  other  advantages  that  one  could  

conceptualise that could emanate from social redistribution, of access to  

higher  education,  including  professional  education,  in  favour  of  

disadvantaged groups. One talks about a knowledge economy that requires  

us to continuously ensure that we push the brightest amongst all of us to  

the  top  or  be  available  in  the  labour  market.  However,  the  supply  

constraints of skilled labour, including professionals, and college educated  

41 Introduction in Meritocracy and Economic Inequality, ed by Arrow, Samuel Bowles and Steven Durlauf.

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graduates is also a major problem. We start with one perfectly reasonable  

assumption that undergirds all of our equality jurisprudence: that we would  

find, as a matter of pure genotype, equal levels of talent, and abilities,  

including  those  needed  for  scholastic  abilities,  in  all  social  groups,  and  

other divisions such as religion or gender. This is not just a scientifically  

proven  fact,  notwithstanding  the  efforts  of  misguided  racist  and  junk  

science, but also a veritable ontological and ethical assumption. This would  

mean  that  unless  this  pool  is  expanded,  to  identify  and  provide  

opportunities for the best performers across all those groups, we would not  

have exploited our human resources as well as we could. This would in turn  

mean that the economic gains that were possible if the imperfections in the  

supply side of the labor market had been overcome, have been lost on  

account of such imperfections, and also would continue to be lost in the  

future.42

117. In  addition  to  the  above,  we also  need  to  be  very  careful  about  

certain arguments that are raised in the context  of  reservations.  These  

arguments  suggest  that  reservations  would  weaken  India’s  capacity  to  

innovate,  and retain its competitive edge in the high tech industries.  It  

would appear that there are at least two problems associated with this.  

One problem seems to be the implicit  assumption that those who have  

42 . Sukhadeo Thorat, Aryama and Prasant Negi ( Eds.)  Quest for Equal Opportunity and  Growth (2007).

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benefited from reservations have not participated, and that such students  

in the future will not participate, in innovative contexts. No empirical data,  

which has been systematically collected, and is free of implicit cognitive  

biases against reservations, to the best of our knowledge, has ever been  

placed before any court of law. To the contrary, proponents of reservations  

point out to the fact that certain regions of the country, which have had  

reservations for nearly hundred years, in fact have witnessed an explosion  

of private unaided colleges in technical & engineering, and scientific fields,  

and also arguably are the regions in which high tech industry is flourishing.  

The  argument  that  academic  standards  in  our  institutions  of  higher  

education need to be high may be valid; nevertheless, we would also need  

to be careful in assessing whether any decline in standards, if any, has  

been on account of students in reserved categories entering institutions of  

higher education, or on account much wider systemic weaknesses in the  

field of higher education, including the way our universities are managed,  

and the levels of research conducted or not conducted. Without separating  

such causal factors, it would be constitutionally impermissible, and indeed  

unethical to lay the blame for any loss of academic standards on students  

in reserved categories.  

118. Setting  aside  the  question  of  whether  candidates  who have been  

enabled to secure admission to professional colleges have participated in  

innovation in the high tech context, we also address a more fundamental  

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issue. The very notion of innovation implicit in such arguments reveals a  

fundamental  flaw.  Innovation  occurs  across  diverse  fields,  in  diverse  

contexts, and with respect to diverse social needs. Two aspects need to be  

recognized in this.  There is a fundamental distinction between invention  

and  innovation.  An  invention  is  a  new  technical  solution  to  a  specific  

technical problem. Joseph Schumpeter43 distinguishes this from innovation,  

which implies  productisation of  that  technical  solution,  in  the form that  

actually  meets  the  needs  of  customers  or  consumers,  located  across  

various regions, with varying degrees of specificity. In order to be able to  

innovate, there is a need to ensure that the innovation process is informed  

about the social needs, circumstances, and cultural factors that could affect  

the effectiveness of the innovation in the field. Within the universal class of  

innovations one would also find need to innovate in a manner that meets  

the  requirements  that  are  specific  to  geographic  area,  particular  social  

group or even according to the level of prior technological adaptation in  

particular  facet  of  social  or  economic  life  of  a  community.  Some  

technological inventions, say general technologies, may not need much of  

user inputs, and a one size fits all solution may be fine for most people.  

However, some innovations may need to be highly specific, and tailored to  

specific  circumstances.  Another  layer  of  complexity  could  be visualized:  

innovation,  particularly  when it  is  based on specific  information,  that is  

more likely to be gained through long years of exposure to specific crafts,  43 Capitalism, Socialism and Democracy, Martino Fine Books (2010).

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problems, social patterns etc. Such information tends to be “sticky” – i.e.,  

it  is  not  easily  specifiable  and  transferable,  is  specific  to  people  who  

actually have had the relevant exposure, and may need to be addressed at  

the location of the problem. Further, it would also mean that unless the  

putative innovator actually knows what the problems are, in a region, or  

specifically  to  a  community,  he  or  she  would  not  even  know  that  the  

problem really exists to begin the process of adapting technical inventions  

to solve those particular problems. In as much as the innovator does not  

belong  to  such  communities,  even  if  they  are  broadly  aware  of  the  

problem,  they  may  not  have  sufficient  “sticky”  knowledge  about  it  to  

innovate an appropriate product or service or solution to effectively solve  

such problems. (See: Eric von Hippel, Democratizing Innovation44)

119. Given above, we address the issue of various innovations that may  

be required at the lower levels of social strata in India. One may need to  

apply technology for a particular localized problem, say in remote villages,  

such as  a  network  or  a  web interface  that  allows women to  pictorially  

navigate  certain  sites  to  find  out  the  best  prices  for  their  produce.  To  

design  such  a  web  interface,  the  designer  would  need  to  know  the  

language of the end user, as well as the particular culture, and levels of  

cultural  identification  of  the  end  users.  Additional  factors  may  also  be  

surmised such as knowledge of cultural variations, particular social mores  

44 MIT Press (2006).

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and problems emanating from such mores.  Would a  person who has a  

broad exposure to emerging or new technologies, as well as the level of  

knowledge that is imparted at graduate level engineering courses, and who  

is also more aware of the local problems, or community specific problems  

be in a better position to engage in the innovative tasks appropriate for  

such a situation? It is entirely conceivable that the youngsters who have  

entered collegiate level courses, based on reservations, may be more adept  

at adapting existing technical solutions to particular problems because of  

their background. Most certainly one could conceive of situations in which  

such youngsters by virtue of their social backgrounds may be the only ones  

who would have the knowledge that a problem exists, or the cultural and  

emotional commitment to acknowledge that such problems also need to be  

addressed and solved, for both personal gain as well as social gain. How do  

we  compare  the  social  value  of  such  activities,  which  may  be  getting  

enhanced  on  account  of  youngsters  from  socially  and  educationally  

backward  classes  and  Scheduled  Castes  and  Scheduled  Tribes  being  

admitted to colleges,  both professional  and non-professional,  as  against  

the  value  generated  from  being  employed  in  some  multi-national  

company?  Why  should  the  Constitutional  discourse  undervalue  the  

importance  of  the  former?  Are  the  lives  of  people  from  socially  

disadvantaged  backgrounds  to  be  deemed  to  be  not  a  constitutional  

concern? The fact that the former may not be quantifiable, or in popular  

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and  elite  culture  not  acknowledged,  does  not  mean  that  they  are  less  

valuable.  

120. We  can  conceive  tremendous  gains  in  another  respect  also.  

Increasingly, with technological advances, the choices made by societies  

with  respect  to  which  technology  is  chosen  for  implementation,  which  

technology is discarded, which technology is promoted and the costs, both  

direct  and  indirect,  such  as  environmental  externalities,  would  have  a  

tremendous impact on social and economic aspects, that range from global  

to local in impact. The implementation of such technologies has an impact  

on multiple constitutional rights, from Article 21 to issues of hidden bias  

against the lower classes. If the people in these socially and educationally  

backward classes, and in Scheduled Castes and Tribes are to engage in  

these debates, about the choices being made, assess the impacts on their  

own lives, and articulate, then surely they would also require youngsters  

from amongst themselves who could understand the vast changes taking  

place  in  the  socio-economic  organizations,  on  account  of  rapid  

technological  changes,  and  explain  to  them,  or  understand  them  and  

articulate their hopes, fears and aspirations. This would mean that apart  

from Article 21 implications for the dignity of lives of other members of  

such disadvantaged groups, there are also implications about Article 19  

freedoms themselves.  These rights are extended to all citizens, and one of  

the fundamental reasons why they are extended is to ensure that every  

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citizen is capable of engaging in a civil, reasoned, and reasonable debate  

about social, economic and political choices. This would obviously deepen  

and enrich the democratic processes of this country, and thereby make it  

more stable.

121. In a recent judgment, this Court, has explicitly recognized that the  

meaning and purport of each article of the Constitution has to be gleaned  

from the text of the article, and also the meaning of that text as it may be  

further informed and transformed by other provisions in the other parts of  

the Constitution. The meaning and extent of a fundamental right cannot be  

gleaned only from the specific text of that particular amendment; rather it  

needs to be gleaned from the matrices of inter-relationships, with other  

fundamental  rights  and  provisions  in  other  parts  of  the  Constitution,  

thereby recognizing the transformations effectuated on each other [GVK  

Industries Limited (supra)]. In that sense, the nature of judicial review of a  

constitutional amendment, in which over-arching principles informing all of  

the fundamental rights have to be gleaned and subjected to the test of  

abrogation of basic structure, comprises a particular form of constitutional  

interpretation  in  which  the  essences  of  each  of  those  over-arching  

principles has to be gleaned and an amendment to the constitution has to  

be evaluated as being lawful or unlawful, in terms of implied limitations of  

power, as it effects those essences.  

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122. In light of the above we find that by the insertion of Clause (5) of  

Article 15, the 93rd Constitutional Amendment has empowered the State to  

enact legislations that may have very far reaching beneficial consequences  

for  the  nation.  In  point  of  fact,  each  and  every  one  of  the  beneficial  

consequences  we have discussed  as  being possible,  would  enhance the  

social  justice content of the equality code, provide for enhancements of  

social and economic welfare at the lower end of the social and economic  

spectrum which can only behoove to the benefit of all the citizens thereby  

promoting  the  values  inherent  in  Article  21,  promote  more  informed,  

reasoned  and  reasonable  debate  by  individuals  belonging  to  various  

deprived segments of the population in the debates and formation of public  

opinion  about  choices  being  made,  and  the  course  that  political  and  

institutional  constructs  are taking in this  country.  Consequently  we find  

that  clause  (5)  of  Article  15 strengthens  the  social  fabric  in  which  the  

Constitutional  vision,  goals  and  values  could  be  better  achieved  and  

served. Or in terms of the analogy to Ship of Theseus, Clause (5) of Article  

15 may be likened to a necessary replacement and in fact an enhancement  

in the equality code, so that it makes our national ship, the Constitution,  

more robust and stable.

123. At present, statistics45 reveal that we just about manage to provide  

access to about 11% or so of the college going age group with access to  

45.Devesh Kapur & Pratap Bhanu Mehta, Morgaging the Future? Indian Higher Education (2007)  

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higher education. Coupled with this, the role of the State, which a lot of the  

disadvantaged people feel is in the hands of the upper crust (including the  

creamy layer of such groups), in higher education is increasingly dwindling  

in terms of seats provided through state funding or aid. For instance nearly  

85% or more of all engineering seats are in the private sector and about  

50% in the field of medicine; and the number of aided and government  

colleges in other fields have just not kept pace. If a vast majority of our  

youngsters,  especially  those  belonging  to  disadvantaged  groups,  are  

denied access in the higher educational institutions in the private sector, it  

would mean that a vast majority of youngsters, notwithstanding a naturally  

equal distribution of talent and ability, belonging to disadvantaged groups  

would  be  left  without  access  to  higher  education  at  all.  That  would  

constitute a state of social  emergency with a potential  for conflagration  

that would be on an unimaginable scale.

124. Indeed at one level the recommendation of Bhandari J., in Ashoka  

Kumar Thakur that high quality institutions catering to the primary and  

secondary  schooling  needs  of  socially  and  educationally  disadvantaged  

groups, and scheduled castes and scheduled tribes have to be increased on  

a war footing is a sound one. This need has been felt for a long time and  

yet the State, which a lot of those youngsters might perceive to be in the  

hands of the upper crust, has not done enough.   However, the argument  

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that access to excellent schooling for all our children, including those from  

disadvantaged backgrounds, ought to be provided cannot be turned on its  

head,  and  then  used  to  deny  the  necessity  of  reservations  in  higher  

education today. Many youngsters from such disadvantaged backgrounds,  

who are getting into institutions of higher education today on account of  

reservations, may at best be characterized as only being insignificantly or  

at  best  marginally  less  proficient  than  the  students  in  the  unreserved  

categories  at  the  starting  point.  If  their  social  and  educational  

disadvantages  are taken into  account,  it  would  not  be unreasonable  to  

conclude  that  they  may  in  fact  be  more  meritorious  and  deserving  of  

access to higher education. It would be unjust to keep denying their claims  

for access and justice, on promises made and unkept, and new promises  

that may take too long to fulfill,  even if  one were to assume that they  

would  in  fact  be  fulfilled.  Promises  are  not  enough  to  avert  social  

catastrophes.

125. One of the things that has exercised our minds has been that in the  

debates  in  popular  discourse  of  the  elite  in  India  it  is  assumed  that  

imposition of reservations on private unaided educational institutions would  

have a great  and deleterious impact on the freedom of educators,  i.e.,  

those who promote, operate, finance and teach in those private unaided  

educational  institutions,  to  choose  their  own  students.  We  hold  that  

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granting   such  a  freedom would  by  itself  be  the  actual  problem.  Our  

societal hierarchy, and in fact one of the sustaining forces of caste system,  

and  caste  like  structures  in  even  other  religious  groups,  apart  from  

endogamy, lack of relative vertical and occupational mobility, has been the  

normative assumption that only some amongst us,  belonging to certain  

social groups, deserve to study and gain the knowledge that truly provides  

ability  to  critically  evaluate  and  attempt  to  change  their  world.  Caste  

system may have been many things,  but  it  was  also  about  systematic  

exclusion from portals of knowledge. To allow that to happen again, now,  

in the garb of a right of the educator to choose his/her own students, and a  

formal  pretense  of  non-discrimination  while  turning  a  blind  eye  to  the  

discrimination inherent in the system of selection for entry, which does not  

test  real  talent  or  ability  would  tantamount  to  a  desecration  of  all  

constitutional values.

126.  The  learned  Senior  Counsel,  also  seemed  to  be  advocating  the  

position  that  we  ought  to  assume  that  TMA Pai,  as  explained  in  P.A.  

Inamdar, is the final word with respect to the content of sub-clause (g) of  

clause (1) of Article 19 even in the context of a basic structure review. This  

we hold leads us into a tautological cul de sac. However, we believe the  

methodology adopted by us,  as  enunciated in M.  Nagaraj  case,  and as  

gleaned from our constitutional jurisprudence, would over come such an  

impasse.   A  tautology is  one in  which  the  assumption  contains  all  the  

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elements of the conclusion in a logical argument. The tautology in the basic  

structure review urged upon us is this: Premise 1: Any derogation from any  

of the essential features of any kind of activity guaranteed freedom under  

sub-clause (g) of clause (1) of Article 19 would constitute an abrogation of  

the basic structure of the Constitution; Premise 2: the freedom of unaided  

educational institutions to not be subject to reservations with respect to  

admission of students is an essential aspect of the freedom to pursue the  

occupation of starting,  operating,  teaching in and managing educational  

institutions; and ergo, Conclusion: reservations would necessarily destroy  

the basic structure of the Constitution.

127. The  power  of  tautological  arguments  is  that  they  sound  very  

reasonable. However, what we should look for is not the reasonableness of  

the  tautological  arguments,  within  the  context  of  the  argument  itself.  

Rather, the structure of the tautological arguments have to be examined  

with  respect  to  the  assumptions  made,  and  the  world  that  has  been  

ignored, before accepting such arguments to be valid and persuasive.

128. In the first place, the assumption that sub-clause (g) of clause (1) of  

Article 19 protections offered to private citizens, as enunciated by TMA Pai,  

and elaborated by P.A. Inamdar, to be the ultimate word with respect to  

what the contents of such activities are is inapposite, in the context of a  

Basic Structure test. Notwithstanding the fact that it is acknowledged that  

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the Constitution can be amended in accordance with Article 368 to take  

away the basis of  a judgment of this Court,  the proposed methodology  

would have us adopting the view that the starting point for the evaluation  

of impact of clause (5) of Article 15 with respect to the basic structure  

would also have to accept the views expressed by this court in TMA Pai to  

be given and deemed to be immutable, as if carved in stone.

129. In the first place, we note that in neither of the two judgments, were  

features  of  the  protections  afforded  to  private  unaided  educational  

institutions evaluated in terms of the basic structure doctrine. Except for  

two references, in two paragraphs in a judgment spanning 450 paragraphs  

in total, TMA Pai does not speak of the basic structure doctrine at all. In  

paragraph 8, the said expression is mentioned, but it is a recitation of the  

submissions made by one of the litigants in the case. This shows that in  

fact the basic structure doctrine was argued by opponents of reservations  

as one of the grounds to deem reservations to be unconstitutional.  The  

Court obviously did not proceed on that ground. Instead, it chose to do so  

only  on the grounds of  the contents  of  sub-clause (g) of  clause (1) of  

Article 19. In terms of M. Nagaraj’s ratio, what we have is a finding of this  

court in TMA Pai that freedoms of private unaided educational institutions  

under sub-clause (g) of clause (1) of Article 19 extends to the concept of  

being free from imposition of reservations, but not an analysis or finding  

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about the status of that specific freedom, i.e.,  freedom to be free from  

reservations, within the freedom code itself, much less an analysis of how  

that freedom to be free from reservations relates to the equality code, and  

constitutional identity in terms of its institutions of governance. Indeed, we  

do  not  even  find  that  this  Court  has  engaged  in   an  analysis  of  the  

relationship of that right to be free from reservations in light of the powers  

granted to the State, under sub-clause (ii) of clause (6) of Article 19 to  

even abrogate, partially or wholly, the participation of private citizens in  

any of the activities guaranteed by sub-clause (g) of clause (1) of Article  

19. In as much as the issue of the content of the freedoms of non-minority  

unaided institutions came about collaterally, and were not the main issue  

under consideration, and notwithstanding the fact that this Court did issue  

an authoritative ruling with respect to such institutions under sub-clause  

(g) of clause (1) of Article 19. We also find that this Court did not engage  

in any discussion with respect to right to life under Article 21, nor to sub-

clause  (a)  of  clause  (1)  of  Article  19  and  its  impact  over  all  on  the  

principles, and the actual processes, of democracy, which would certainly  

include  within  itself  the  rights  of  people  of  all  segments,  regions  and  

groups to possess the appropriate level of knowledge to be able to debate,  

discuss and influence social, political and economic choices of institutions.  

Such choices could have a vast impact on vital aspects that inform right to  

life under Article 21.  

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130. In light of the above, we are unimpressed by the arguments that  

TMA Pai, as explained by P.A. Inamdar also provide the appropriate content  

for  undertaking  an  “essences  of  rights  test”  i.e.,  an  “over-arching  

principles”  test,  as  enunciated  by  M.  Nagaraj,  to  assess  whether  a  

Constitutional  amendment,  such  as  the  93rd Constitutional  Amendment,  

violates the Basic Structure. Indeed we are acutely aware that TMA Pai, is  

an eleven judge bench judgment, and P.A. Inamdar to be a seven judge  

bench judgment. However, the very eloquent silence of the two benches as  

to whether the contents they have read into sub-clause (g) of clause (1) of  

Article 19 to constitute a basic feature of the Constitution, is itself a clear  

indication that this Court,  in those judgments was not engaging in that  

type of analysis. This Court, through another constitutional bench, Islamic  

Academy, had also exhaustively examined the ratio in TMA Pai, and there  

is not even a whisper therein that there is any indication in TMA Pai, that  

the  right  of  private  unaided  educational  institutions  to  be  free  from  

reservations  would  constitute  a  right  of  such magnitude that  its  partial  

truncation  would  abrogate  the  basic  structure  of  our  Constitution  and  

change its very identity. What TMA Pai did was essentially to engage in a  

“reasonableness  standard”  test  based  on  the  text  of  Article  19(1)(g).  

Nothing more.

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131. This Court, in P.A. Inamdar, warns us that “certain recitals, certain  

observations and certain findings in” TMA Pai are “contradictory inter se…

….  There  are  several  questions  which  have  remained  unanswered….”.  

Certainly,  the  issue  of  whether  the  State  can  impose  reservations,  on  

private  non-minority  unaided  educational  institutions,  pursuant  to  a  

Constitutional amendment, are not even raised in TMA Pai. Moreover, while  

some aspects of  the contents of education as an occupation have been  

noted, many other aspects have not been evaluated, especially in light of  

the goals of egalitarian social order, and ensuring of social justice, richness  

of  democratic  processes  and attitudes that  inform them, and ultimately  

dignity of  vast swaths of humanity. Hence, to depend on the analysis in  

TMA Pai, with regard to the constitutional  status of the contents of the  

rights of non-minority unaided educational institutions, in the context of a  

basic structure review would not only be inapposite, but also lead the Court  

down the wrong path.

132. In light of the above, we are necessarily compelled to look at those  

unexamined aspects, including the contents of the very occupation that is  

guaranteed by sub-clause (g) of clause (1) of Article 19. This is imperative  

because a test of a constitutional  amendment on the anvil  of  the basic  

structure doctrine using the “essences of rights” test i.e., the “over-arching  

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principles  test”  is  an  entirely  different  exercise  from  a  mere  

“unreasonableness test” undertaken by this Court in TMA Pai.

133. This  Court,  in  TMA Pai,  declared the  establishment  of  educational  

institutions by citizens to be an “occupation” as comprehended in the text  

of sub-clause (g) of clause (1) of Article 19. In doing so, the Court cited  

approvingly, and extensively, from Corpus Juris Secondum. In particular,  

the word “occupation” is stated to be a very “comprehensive term, which  

includes every species of the genus, and encompasses the incidental, as  

well  as  the main,  requirements  of  one’s  vocation,  calling,  or  business.”  

Consequently, it would necessarily mean that in describing “education” as  

an occupation, the Court, in TMA Pai, certainly meant that it needs to be  

comprehended  in  its  entirety,  even  if  for  the  specific  purposes  of  the  

questions it set out to answer in that particular case, the Court did not deal  

with all such incidental and other  requirements of the calling.

134. The Court also cited approvingly the observations of the University  

Education Commission, headed by Dr. Radhakrishnan as its Chairman, and  

in  particular  the  following  is  very  important:  “Liberal  Education  –  All  

education is expected to be liberal. It should free us from the shackles of  

ignorance, prejudice and unfounded belief. If we are incapable of achieving  

the good life, it is due to the faults in our inward being, to the darkness in  

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us. The process of education is the slow conquering of this darkness. To  

lead us from darkness to light,  to free us from every kind of domination  

except that of reason, is the aim of education.(emphasis supplied)” This  

obviously implies that the darkness of ignorance, prejudice and unfounded  

belief,  wherever  it  may  be  found,  including  amongst  the  socially  and  

educationally disadvantaged classes, and those who have been subjected  

to  grossly  inhuman  deprivations  and  unjust  discriminations,  such  as  

Scheduled Castes and Scheduled Tribes,  has to be eliminated.  Not just  

equality, but freedom itself would lose any meaning and content, if such  

darkness were to pervade amongst large swaths of our people. Certainly,  

in  as  much  as  the  word  “occupation”  comprehends  within  itself  all  

incidental, as well as the main requirements of the vocation, we ought to  

reasonably  be  able  to  conclude  that  education  as  an  occupation  would  

certainly have to comprehend as one of its chief goals the tasks to which  

liberal education, in so far that all education is liberal education, has to  

necessarily serve.  

135. Furthermore,  certain  other  aspects  of  education  as  an  occupation  

also have to be taken into account to assess the nature of content of the  

rights granted to “educators” under sub-clause (g) of clause (1) of Article  

19. Note should also be made of the fact that the Court in TMA Pai has  

specifically characterized the nature of the occupation to be “charitable”,  

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and in fact specifically notes that private educational institutions have been  

started  by  educationists,  philanthropists  etc.  This  was  so  because  

“[E]ducation is a recognized head of charity.”

136. A charitable activity, is also a philanthropic activity. Charity, the basis  

on which the charitable activity is undertaken, such as the setting up of,  

managing and operating educational institutions, is defined to include the  

following meanings: giving voluntarily to those in need, an institution or an  

organization for helping those in need, kindness & benevolence, tolerance  

in  judging  others  and  love  of  one’s  fellow  men.  In  a  similar  vein,  

philanthropy involves a love of mankind46. If one were to take a synoptic  

view of history of mankind, one would realize that educational institutions,  

as formal structures for learning, were invariably started by the State, or  

by citizens who had a great love for their fellow human beings. In societies  

which were homogenous, and not hierarchically ordered, this love extended  

to all its members. The idea was that equipping as many youngsters as  

possible with knowledge would strengthen the society, bring in the benefits  

of  enlightenment  that  darkness,  caused  by  ignorance,  prejudices  and  

unfounded  beliefs,  denies  to  the  individuals  as  well  as  the  society.  No  

philanthropist, with love for mankind, would want to educate a person who  

says that he or she wants to be enlightened only for personal benefit or for  

using  the  knowledge  gained  to  perpetuate  injustices  in  the  society  or  

46 The Concise Oxford Dictionary (1990)

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strengthen inequality. Of course TMA Pai, by declaring that reasonable fees  

has to be collected, to cover capital costs, day to day operations etc., has  

brought in an element of financial viability. However, one should not then  

view that TMA Pai would have intended, when it accepted that education as  

an occupation could only  be charitable  in  nature,  that it  would also  be  

devoid of intrinsic and essential qualities such as love for mankind as the  

motivating factors in starting educational institutions.

137. However, in hierarchical societies, marked by endemic inequalities,  

and where hierarchy had ossified, this “love of mankind”, which was the  

primary,  and  inherent,  motive  of  education  as  a  charitable  or  a  

philanthropic occupation, was extended only to individuals who belonged to  

the  communities  to  which  such  philanthropists  belonged  to.  Time,  

knowledge, and philosophical constructs that inform our love for mankind  

change. Even societies in which race was used to impose horrific economic  

and  social  conditions  on  those  who  belonged  to  enslaved  races,  have  

changed. Great universities, such as Harvard which many decades ago did  

not admit students from formerly enslaved races, or women, or those with  

other disadvantages, have with the march of time recognized that the very  

notion of education as a philanthropic activity would lose its motive force,  

and the essentiality of its purpose, of imparting liberal education that leads  

people from darkness to light and that is inner soul would be derogated  

from if individuals from other races, or women, or those who face social  

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disadvantages  are  also  not  provided  access.  In  this  regard,  many  

universities have also come to the view that one of their essential purposes  

lies in providing higher education  to ensure that in every sphere of social  

action, in which choices are made that impact differentially on different  

segments  of  the  society,  there  be  diversity  of  representation  from  all  

segments  of  the society.  This  is  recognized as necessary  to enrich and  

strengthen  democratic  processes,  by  bringing  diversity  of  views  and  

ensuring that debate occurs in a reasoned and reasonable manner, which  

in turn integrates the society and polity. Knowledge has expanded by leaps  

and bounds, and not all of it can be taught at the stage of secondary school  

education. The ability to engage with this expanding knowledge, to auto-

didactically keep pace with such expanding frontiers, is typically provided  

only at collegiate level.47 This implies that unless access is provided on a  

wide scale, across all swath of the population, the debates about social,  

political,  economic  and  technological  choices  would  be  uninformed,  and  

therefore  also  likely  to  be  unreasoned  and  unreasonable,  thereby  

threatening the democratic process and social integration that is vital for  

fraternity  and  unity  of  the  nation  threatened.  Noting  the  pernicious  

influence of marketplace throngs that seek to subordinate the higher status  

of  higher  education,  Frank  Newman,  Laura  Couturier  and  Jamie  Scurry  

write that from “the establishment of the first college in America in 1636,  

there has been an understanding that higher education, though it clearly  47 Learning To Be: The World of Education Today and Tomorrow – Unesco Paris 1972

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provides  private  benefits,  also  served  community  needs…..  steadily  

expanded from preparation of young men for leadership…. to preparation  

of a broad share of population for participation in the workforce and civic  

life…”  (See The Future  of  Higher  Education  –  Rhetoric,  Reality  and the  

Risks of the Market48).

138. Moreover, great universities have also begun to recognize that merit  

cannot be assessed purely on past performance, in exams or as revealed  

by grades. They recognize that a more composite manner of evaluation  

ought to be implemented. For these reasons, they look at not merely  the  

marks secured at the qualifying level, or aptitude tests. They also evaluate  

the desirability of admitting students on the basis of recommendations of  

their teachers, the statements of purposes written by prospective students,  

and  consider  many  other  factors  such  as  background  experiences.  For  

instance a demonstrated desire to undertake social service, or being part of  

activities that demonstrate an acknowledgement of social responsibility are  

also taken into account. There are three reasons why they do that.

139. One  is  that  grades  and  marks,  at  the  secondary  level  may  not  

necessarily indicate why a youngster has scored a certain level of marks or  

not, thereby not being a substantially accurate measure of ability to pursue  

studies  at  the  collegiate  level.  The  second  relates  to  expectations  of  

48 Jossey Bass, 1st Ed (2004)

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universities  as  to  how  knowledge  gained  would  be  used  by  the  wider  

society and its impact on society.  Those multiple  other  means provides  

them, obviously not perfectly, but a more granulated and textured view  

about the background of the youngster, the particular circumstances under  

which the youngster was expected to study, and yet achieved what he or  

she achieved.

140. The third is the recognition that knowledge is generated and applied  

in diverse social contexts. Consequently, from a pedagogic and educational  

perspective, it is felt  that having a diverse student body would enable the  

scholars to interact, learn about the diversities in life, and social worlds,  

and  appreciate  the  diverse  points  of  views  and  needs.  This  obviously  

enhances  the  learning  environment  for  students,  and  is  viewed  as  an  

essential  component  of  the  environment  of  the  university  in  which  all  

students  from  diverse  backgrounds  would  study.  It  is  viewed  as  a  

necessary  component  of  the  “knowledge  inputs”  and  also  an  essential  

aspect of learning to be. We must recognize that many Indians, essentially  

from the upper crust, would not have had the opportunity to study in such  

universities,  which  are  centers  of  great  academic  excellence,  if  those  

universities, educationists, and their philanthropists who had financed such  

institutions  had stuck to  archaic  notions  of  inherent  inequality  amongst  

human beings, and insisted only on the demonstrated ability to get high  

marks.  Our  students  were  selected  because  they had  demonstrated  an  

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ability  to  excel  within  the  background  of  our  current  socio-economic  

circumstances, and their academic accomplishments may or may not have  

been equivalent to what youngsters in similar cohorts in those nations, and  

indeed all across the World, actually accomplished. It was also felt that it  

was  important  for  other  students  in  such  universities  to  interact  with  

Indians, learn about our ancient culture, our lives and our circumstances,  

and  view the  knowledge  they  were  gleaning  from text  books,  whether  

sciences,  social  sciences  or  humanities,  from  the  perspective  of  entire  

humanity, including India.

141. Knowledge  is  the  vital  force  that  unites  people.  Knowledge  is  

generated in diverse circumstances, in the practical arenas that range from  

a highly technical and clinical laboratory, to the humble farmer, or a hut  

dweller eking out a bare subsistence. It is an accumulated gift of humanity  

to itself. The knowledge that non-minority educational institutions seek to  

impart,  is  not  knowledge  that  they  have  created.  That  knowledge  was  

shared  by  people  who have generated  such  knowledge  out  of  love  for  

humanity. Knowledge is shared by human beings all over the world out of  

love  for  humanity.  Knowledge  was  passed  down  from  the  dark  and  

forgotten  past,  out  of  love  for  humanity.  To  attempt  to  convert  that  

knowledge  into  “gated  communities  of  exclusion”  would  be  to  sow the  

seeds  of  destruction  of  humanity.  Non-minority  educational  institutions  

claim that they ought to have the right to choose only those who have  

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demonstrated a certain level of proficiency in tests, where the differences  

between those  who get  selected  and those  who are  discarded  may be  

insignificant, or do not take into account the impact of differences in social  

and educational backgrounds on the performances in those tests. They also  

claim the right to be free from any state based imposition of reservations,  

thereby denying any social responsibility in ensuring that those who are  

the  best  within  the  socially  and  educationally  backward  classes,  and  

Scheduled Castes and Scheduled Tribes. To claim a right to distribute it  

only to a few, who are selected on the basis of tests which do not reveal  

the true talents  spread across  diverse groups,  and communities  in  this  

country,  is  to  destroy  the  very  foundation  by  which  such  non-minority  

educational  institutions  are  given  access  to  knowledge.  To  partake  of  

knowledge, from the common pool, that is a gift of humanity, including our  

common ancestors, to all of humanity, and then to deny the responsibility  

to share it with the best amongst youngsters who are located in diverse  

groups would be a betrayal of humanity.

142. Knowledge  is  also  power.  It  empowers  the  individual.  It  also  

empowers the group to which that individual belongs to, and has culturally  

been induced to show greater affinity for. Consequently, the propagation of  

knowledge  only  amongst  certain  groups,  whether  done  deliberately,  or  

done on supposed objective tests of merit that are context and background  

insensitive,  would  lead to  massive  imbalances  in  the  level  of  power  to  

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understand,  and articulate,  amongst  social  groups.  Let us not  deny the  

truth. We were a horrifically divided society. We may have progressed a  

bit. Yet we remain endemically unequal, as between groups. Caste, gender,  

and class still are the structural impediments to the realization of a truly  

egalitarian society. The inherited social, educational, cultural, political and  

economic disadvantages  of  vast  swaths of  humanity  in  our  country  are  

propagated  across  generations.  A  system that  predominantly  results  in  

giving  access  to  only  certain  groups  would  necessarily  work  towards  

sustenance  of  those  inequalities.  This  will  have  an  immediate,  and  

necessarily, a deleterious impact on the quality of our social and political  

discourse, in our assessment of the problems that our society confronts  

and which of those problems ought to be prioritized for social action. It will  

also hinder the development of abilities amongst students graduating from  

those gated institutions of higher education that are vital  to be able to  

interact  with other Indians,  less fortunate than themselves and treating  

them  with  respect,  and  in  the  application  of  their  knowledge  for  the  

betterment  of  communities,  and  larger  society  around  themselves.  

Reservations,  for  socially  and  educationally  backward  classes  and  

Scheduled Castes and Scheduled Tribes, would ensure that students from  

different  social,  educational,  economic  and  cultural  backgrounds  get  

together to study, and learn about each other, and critically assess the  

relevance, in the manner in which knowledge is generated, disseminated,  

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and applied.  This  necessarily  relates to the standards and purposes  for  

which higher education, including professional education, is imparted. We  

certainly don’t expect all of our students, who graduate from our colleges  

to go and join the “global society,” whatever such a construct might mean.  

We obviously expect most or many of them to live and work in India. To  

not build the right scholastic environment, in which there is a diversity in  

the student body, reflecting the diversities of India, would be a fraud that  

our educational institutions would be perpetrating. Further, if  one posits  

that national  barriers  are breaking down, and that we are all  a part  of  

some amorphous “global village”, based on knowledge economy, to deny  

access to the best amongst various social groups in India, would be an act  

that destroys their prospects of living in such a global society. Either way,  

to allow that to happen by granting access to higher education solely or  

mostly to the privileged segments of our population would be to invite a  

cultural genocide.

143. It is not without reason that one of the great educationists of the  

World,  Paulo  Freire,  characterized  education  as  “Cultural  Action  For  

Freedom.49”  It  is  an  activity  that  all  societies,  and  human  cultures,  

undertake  to  enable  their  children  to  be  free  from  ignorance,  and  

dehumanization that necessarily inheres in such ignorance and perpetuated  

in  the  inegalitarian  social  order  that  ignorance  creates,  nourishes  and  

sustains.  Education  is  expected  to  free  the  youngster,  from  elite  49 Harvard Educational Review (2000).

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backgrounds,  that  perpetuate  the  oppression  of  those  from  deprived  

backgrounds,  from  the  dehumanization  that  is  implicit  in  the  very  

acceptance of a hierarchical order of superior and inferior. One of the great  

dangers that a highly stratified society faces is that when the oppressed,  

trained to think that hierarchy, and the power to oppress are the natural  

order on account of the culture perpetrated by the oppressors, fight for  

relief from oppression, that they currently face, the cry for liberation might  

then turn into a liberty and a right to oppress the previous oppressor. That  

process dehumanizes them too. The task of education, as a cultural action  

for freedom, is to promote the establishment of a truly humanized society.  

It pays to quote Paulo Freire extensively from his work “Pedagogy of the  

Oppressed”50:

“While the problem of humanization has always, from an  axiological perspective, been humankind’s central problem,  it  now  takes  the  character  of  an  inescapable  concern.  Concern for humanization leads at once to the recognition  of  dehumanization,  not  only as an ontological  possibility  but as an historical reality. And as an individual perceives  the  extent  of  dehumanization,  he  or  she  may  ask  if  humanization  is  a  viable  possibility.  Within  history,  in  concrete,  objective  contexts,  both  humanization  and  dehumanization  are  possibilities  for  a  person  as  an  uncompleted being conscious of their incompletion….. But  while  humanization  and  dehumanization  are  real  alternatives,  only  the first  is  the people’s  vocation.  This  vocation is constantly negated, yet it is affirmed by that  very  negation.  It  is  thwarted  by  injustice,  exploitation,  oppression,  and  the  violence  of  the  oppressors;  it  is  affirmed by the yearning of the oppressed for freedom and  justice,  and  by  their  struggle  to  recover  their  lost  

50 Continuum, New York (30th Anniversary Edition, 2005)

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humanity.  Dehumanization,  which  marks  not  only  those  whose humanity has been stolen,  but also (though in a  different way) those who have stolen it, is a distortion of  the  vocation  of  becoming  more  fully  human……  This  struggle is possible only because dehumanization, although  a concrete historical  fact,  is not a given destiny but the  result  of  an unjust order that engenders violence in the  oppressors, which in turn dehumanizes the oppressed.”

Elsewhere, that great scholar continues:

“Because  it  is  a  distortion  of  being  more  fully  human,  sooner or later being less human leads the oppressed to  struggle against those who made them so. In order for this  struggle  to  have  meaning,  the  oppressed  must  not,  in  seeking to regain their humanity (which is a way to create  it) become in turn oppressors of the oppressors, but rather  restorers of the humanity of both.

“This, then, is the great humanistic and historical task of  the oppressed: to liberate themselves and their oppressors  as well. The oppressors, who oppress, exploit, and rape by  virtue  of  their  power,  cannot  find  in  this  power  the  strength to liberate either  the oppressed or  themselves.  Only  power  that  springs  from  the  weakness  of  the  oppressed  will  sufficiently  be  strong  to  free  both.  Any  attempt  to  “soften”  the  power  of  the  oppressor  in  deference to the weakness of the oppressed almost always  manifests itself in the form of false generosity; indeed, the  attempt  never  goes  beyond  this.  In  order  to  have  continued  opportunity  to  express  their  “generosity,”  the  oppressor  must  perpetuate  injustice  as  well.  An  unjust  social order must perpetuate injustice as well. An unjust  social  order is  the permanent fount of  this  “generosity,”  which is nourished by death, despair and poverty. That is  why dispensers  of  false generosity  become desperate at  the slightest threat to its source…..True generosity consists  precisely in fighting to destroy the causes which nourish  false charity.”  

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144. Our  non-minority  unaided  educational  institutions,  including  

professional  educational  institutions,  in  claiming  to  be  engaging  in  a  

charitable occupation, and yet claiming the right to ignore the conditions of  

social  injustice  and  inequality  that  have  a  bearing  on  academic  

accomplishments  of  students  at  a  young  age,  which  are  the  indicia  of  

oppression, would necessarily perpetuate the conditions of lack of access to  

knowledge  that  can  transform  the  praxis  of  socially  and  educationally  

disadvantaged groups. The occupation they would be engaging in would be  

imbued with “false charity.”  For the past two decades, this country has  

been in the throes of early “amor” with the false but mesmerizing promises  

of laissez faire free markets, liberalization, privatization and globalization.  

The State, in the throes of that false passion, believed that it would lead to  

generation of such wealth, that it could then take on the task of providing  

access  to  higher  education  to  hitherto  excluded  classes  and  groups.  

However, that promise has turned out to be false and a mirage. It is now  

apparent to the State that denial of access to higher education, to socially  

and educationally backward classes, and Scheduled Castes and Scheduled  

Tribes,  would  potentially  be  dangerous  to  the  ship  of  our  nation,  the  

Constitution.  The 93rd Amendment,  by necessitating  a  wider  analysis  of  

different facets of our constitutional constructs, and the ontology that it is  

based  on,  has  revealed  new  dimensions  of  understanding  our  past,  

present, and how we might approach the future. The verities of historical  

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human  experience,  that  passing  ideological  passions  had  buried,  stand  

forth now, in their glorious hue of a true path to a humanized destiny. It is  

imperative, that our institutions of higher learning, which are a part of our  

national  life,  be  freed  from  this  false  charity  that  can  only  lead  to  a  

dehumanized social order.

145. Our Constitution is based on an ontology of humanism. It is based on  

the recognition of the dehumanization of vast swaths of our people in a  

hierarchical society. It is based on the acknowledgment of the truth that as  

long as endemic inequalities remain entrenched, the cultural constructs of  

the inherited notions of hierarchy and of social worth based on social status  

would not disappear, and further intensify the conditions of dehumanized  

existence  of  all  human  beings,  irrespective  of  their  stature.   The  

disadvantaged  are  obviously  brutalized  and  dehumanized,  by  the  very  

structure in which they are compelled to live in. If the masses of India  

were to start believing, which thankfully they do not, and hopefully will not  

in the future, that their dehumanized condition is immutable, then also the  

ship of  our constitution would have lost  its  way. If  they conclude,  that  

dehumanization  is  the  only  normal  order  based  on  what  some  keep  

propagating, and then further conclude that the only way out for  them  

would be to violently revolt and oppress the oppressor, the ship would sink.

146. Education  is  one  of  the  principal  human  activities  to  establish  a  

humanized  order  in  our  country.  Its  ontological  specification  is  simple:  

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every individual, in every group, is worthy of being educated. In as much  

as  certain  resources,  such  as  seats  in  institutions  of  higher  education,  

including  professional  education,  are  scarce,  then  they  have  to  be  

allocated. The allocation can only be based on the fundamental ontological  

assumption that those who excel, within equal social circumstances, should  

be  rewarded  with  access  to  higher  education.  Any  other  formula  of  

distribution of such access, would be fundamentally inhuman, and violate  

Article 14 of our Constitution. Given our past history of caste and gender  

based  discrimination,  and  the  continuation  of  endemic  inequalities,  in  

social,  economic  and  cultural  spheres,  including  education  at  all  levels,  

giving freedom to an educator to choose who he or she would want to  

teach,  and  teach  only  those  who  belong  to  socially  and  educationally  

advanced groups, would be a curse on our constitutional project. The fact  

that  non-minority  unaided  educational  institutions  insist  on  “social  

disadvantages  blind”  admission  policies  is  proof  that  they  are  not  

recognizing the true purpose of education as an occupation. Hence, State  

intervention  is  a  categorical  imperative,  both  morally  and  within  our  

constitutional logic.

147. In light of the above, we hold that the claimed rights of non-minority  

educational institutions to admit students  of their choice, would not only  

be  a  minor  right,  but  if  that  were  in  fact  a  right,  if  exercised  in  full  

measure, that would be detrimental to the true nature of education as an  

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occupation, damage the environment in which our students are taught the  

lessons of  life,  and imparted knowledge,  and further  also  damage their  

ability  to  learn  to  deal  with  the  diversity  of  India,  and  gain  access  to  

knowledge of its problems, so that they can appreciate how they can apply  

their formal knowledge in concrete social realities they will confront.

148. Consequently,  given  the  absolute  necessity  of  achieving  the  

egalitarian and social justice goals that are implied by provisions of clause  

(5) of Article 15, and the urgency of such a requirement, we hold that they  

are not a violation of the basic structure, but in fact strengthen the basic  

structure of our constitution. Consequently, we also find that the provisions  

of Delhi Act 80 of 2007, with respect to various categories of reservations  

provided therein to be constitutionally valid.

VIII

CONCLUSIONS:  

A) The  Delhi  Professional  Colleges  or  Institutions  (Prohibition  of  

Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee  

And Other Measures to Ensure Equity And Excellence) Act, 2007 (Delhi Act  

80 of 2007) or any provisions thereof do not suffer from any constitutional  

infirmities.  The validity of the Delhi Act 80 of 2007, and its provisions, are  

accordingly upheld.  

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B)   The  Notification  dated  14-08-2008  issued  by  the  Government  of  

National Capital Territory of Delhi permitting “the Army College of Medical  

Sciences, Delhi Cantonment, Delhi to allocate hundred percent seats in the  

said college for admission towards of Army personnel in accordance with  

the policy followed by the Indian Army” is ultra vires the provisions of Delhi  

Act 80 of 2007 and also unconstitutional.   The same is  accordingly set  

aside.  

C) The  admission  procedures  devised  by  Army  College  of  Medical  

Sciences, Delhi Cantonment, Delhi for admitting the students in the first  

year MBBS course from a pre-defined source, carved out by itself and its  

parent society, are illegal and ultra vires the provisions of the Delhi Act 80  

of 2007.  

D) Clause (5) of Article 15 does not violate the basic structure of the  

Constitution.  

RELIEF

For the aforesaid reasons the impugned judgment of the Delhi High  

Court is set aside.  Consequently, the respondents are directed to admit  

the Writ Petitioners into the First Year of MBBS Course in Army College of  

Medical Sciences, if the Writ Petitioners still so desire, for they have been  

deprived of their legitimate right of admission to the course, for no fault of  

theirs, notwithstanding the rank secured by them in the CET.  It is true  

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that they have appeared at the common entrance examination held long  

ago  and qualified themselves to get admitted but were deprived of the  

same on account of the illegal admission policy of Army College of Medical  

Sciences permitted by the Government of Delhi.   In the circumstances, all  

the respondents are accordingly directed to ensure that the Writ Petitioners  

are admitted into the First Year MBBS Course in the ensuing academic year  

by creating supernumerary seats.   However,  we make it  clear  that  the  

admissions already made by Army College of Medical Sciences are saved  

and shall not be affected in any manner whatsoever.  

The appeals and the writ petitions are accordingly ordered.  

………………………………J. [B. SUDERSHAN REDDY]

………………………………J. [SURINDER SINGH NIJJAR]

NEW DELHI  May 12, 2011.

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