Look, T.M.A. Pai Again!

I have had the privilege to observe and contribute to several ‘Educational Institutions’ matters, courtesy my Senior. Any attempt at interpretation of the long line of cases proves to be tiresome. The judgment in Modern Dental College and Research Centre v. State of Madhya Pradesh, [Civil Appeal No. 4060 of 2009] (“Modern Dental”), delivered on 02.05.2016, provides a brave summary. Accept it with abundant caution. 5 Judges have no jurisdiction to interpret 7 or 11 erstwhile Lords. The burden on the expert on ‘Educational Institutions’ is thus no less by virtue of Modern Dental:

In T.M.A. Pai Foundation, a Bench of 11 Judges dealt with the issues of scope of right to set up educational institutions by private aided or unaided, minority or non-minority institutions and the extent of Government regulation of the said right. It was held that the right to establish and administer an institution included the right to admit students and to set up a reasonable fee structure. But the said right could be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure. Immediately after the judgment in T.M.A. Pai Foundation, a group of writ petitions were filed in this Court, which were dealt with by a Bench of 5 Judges in Islamic Academy of Education. 4 of the Judges were the same who were party to the judgment in T.M.A. Pai Foundation. The issue considered was the extent of autonomy in fixing the fee structure and making admissions. This Court held that while there was autonomy with the institutions to fix fee structure, there could be no profiteering and no capitation fee could be charged as imparting of education was essentially charitable in nature. It was provided that admission must be based on merit. It was impossible to control profiteering/charging of capitation fee unless admission was on merit. The matter was then considered by a Larger Bench of 7 Judges in P.A. Inamdar. It was observed that unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb. Undoubtedly, the right to establish and manage the educational institutions is a fundamental right recognised under Article 19(1)(g) of the Act. It also cannot be denied that this right is not ‘absolute’ and is subject to limitations i.e. ‘reasonable restrictions’ that can be imposed by law on the exercise of the rights that are conferred under clause (1) of Article 19. Those restrictions, however, have to be reasonable. While defining as to what constitutes a reasonable restriction, this Court in plethora of judgments has held that the expression ‘reasonable restriction’ seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression ‘reasonable’ connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Doctrine of Proportionality is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. Jurisprudentially, ‘proportionality’ can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible.

Right to be treated fairly and to get admission through a non-arbitrary, non- discriminatory, fair and transparent procedure is a Fundamental Right of the students under Article 14. Any law which creates an artificial classification between private unaided institutions and other institutions and creates a disparity in the matter of admission whereby a meritorious student could be denied admission… solely because such institution has an unfettered right to choose its own students without following a uniform and transparent admission procedure would be violative of the rights of the aspiring students guaranteed under Article 14. Right of the students to admission in private unaided colleges is a right of equality in opportunity. On many occasions, this has led to a conflict between fundamental rights of private educational institutions on the one hand and the rights of students and public at large on the other. However, the law is now settled. In such cases where there is a conflict between fundamental right of two parties, that right which would advance public morality or public interest would prevail.”