IMPORTANT POINTS
Denial of access to higher education, to socially and educationally backward classes, and Scheduled Castes and Scheduled Tribes, would potentially be dangerous.
Provisions of clause (5) of Article 15 are not a violation of the basic structure, but in fact strengthen the basic structure of our constitution.
The provisions of Delhi Act 80 of 2007, with respect to various categories of reservations provided therein are constitutionally valid.

Headnote:(a) Constitution of India – Article 12 – High Court holding that ACMS is not an instrumentality of the State, and it is a private non-minority unaided professional institution – No reason to take a contrary view. (Para 32)
        (b) Interpretation of statutes – 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. (Para 33)
        1963 AIR 1561: (1964) 2 SCR 87 – Relied upon
        (c) Interpretation of statutes – The purpose that the Act seeks to achieve has to be kept in mind – The relationship of each clause or sub-clause to the other is crucial – The strict lexicographical arrangement of sub-clauses, one after the other, ought not to be taken to mean that the one following is of lesser importance – Sub-section (2) of Section 12 is one of the primary sections of the Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 and it would act upon the provisions of Sub-section (1) of Section 12. (Para 36)
        (d) 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 – Section 12 – Interpreting section 12 to be legally permitting ACMS to fill 100% seats by wards of Army personnel only would negate the legislative intent of social justice and ensuring excellence – Government of Delhi is not empowered to grant any exemption in favour of any institution from the operation of any of the provisions of the Act – Such exemption is also contrary to the mandate of Article 162 of the Constitution. (Para 39)
        AIR 1955 SC 549: (1955) 2 SCR 225; (1971) 1 SCC 607 – Relied upon
        (e) 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 – Section 12(1)(b) – 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%. (Para 43)
        (f) 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 – Section 12(1) and (2) – “Allocation” used in sub-section (1) and “reservation” used in sub-section (2) – Power to vary allotment in clause (b) of sub-section (1) cannot be inferred from the use of the word “allotment” in sub-section (1) thereby setting at naught the intent of legislature of Delhi to allot seats for Scheduled Castes, Scheduled tribes, and other weaker sections – Such power would also set at naught the legislature’s intent to allocate that at least 85% of seats that remain after 10% of management seats are set aside, to students of Delhi – Exemption allowing ACMS to fill 100% of its seats by wards of army personnel violates the basic principles of democratic governance and constitutional requirement and is contrary to the Act. (Paras 44, 45)
        (1971) 2 SCC 293; (1993) 1 SCC 645 – Distinguished impliedly
        (g) Constitution of India – Articles 30(1), 19(1)(g) and 15(5) – 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. (Para 56)
        (2002) 8 SCC 481; (2005) 6 SCC 537; (2003) 6 SCC 697 – Relied upon
        (h) Constitution of India – Article 15(5) – All seats available in the non-reserved category have to be filled by non-minority institutions on the basis of merit of students, in the general category, comprising of the entire set of students who have taken the qualifying examination and secured the minimal marks. (Para 57)
        (i) Interpretation – Judgment – A few stray sentences here and there ought not to be taken to indicate an actual holding or ratio – The ratio of TMA Pai is that education could be an occupation under Article 19(1)(g) only when charitable in nature. (Paras 58, 59)
        (2002) 8 SCC 481 – Relied upon
        (j) Constitution of India – Article 19(6) – The level of regulation imposable by the State would be greater for non-minority educational institutions than the minority educational institutions – Accordingly, non-minority institutions can 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 minority institutions by virtue of Article 30(1) – Such protection is not available to AWES or ACMS – Non-minority private unaided professional colleges like ACMS do not have the right to choose their own “source” from within the general pool. (Paras 61, 64)
        (2002) 8 SCC 481; (2005) 6 SCC 537; (2008) 6 SCC 1 – Relied upon
        (k) Constitution of India – Article 15(5) – It would be, and ought to be a matter of considerable national distress if army personnel are not extended an empathetic understanding of their needs and aspirations in the matter of education of their wards – Reserving seats for wards of Army personnel is the function of the State – The private society of former and current army personnel and institutions like ACMS cannot do this. (Para 66)
        (l) Constitution of India – Article 15(5) and Delhi Act 80 of 2007 – Validity – The correct approach to find out whether a constitutional amendment or legislation is violative of basic structure of he Constitution would 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” – 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 – Right to charge appropriate fees having been protected, and cap of 50% reservation kept; Article 15(5) and the Delhi Act are not violative of basic structure of the constitution. (Para 73)
        (2002) 8 SCC 481; (2005) 6 SCC 537; (1980) 3 SCC 625; (2007) 2 SCC 1; (1973) 4 SCC 225; 1975 Supp SCC 1 – Relied upon
        (1967) 2 SCR 762 – Distinguished
        (m) Constitution of India – Article 15(5) – Validity – Provisions of Article 15(5) do not purport to take away the power of judicial review, or even access to courts through Articles 32 or 226 – The provisions also do not mandate the field of higher education to be taken over by the State itself, in violation of clause (6) of Article 19 – Not disturbing basic structure of the constitution. (Paras 77, 78)
        (1981) 2 SCC 362; (2006)8 SCC 202 – Relied upon
        (n) Interpretation of Constitution – 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 – If a law abrogates or abridges a fundamental right and also violates the basic structure then it must be set aside – 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 – So considered, Article 15(5) is consistent with the basic structure of the constitution. (Paras 84, 85)
        (2006) 8 SCC 212; (2011) 4 SCC 36 – Relied upon
        (o) Constitution of India – Article 14 – Article 14 does not merely aspire to provide for mere formal equality, but also equality of status and of opportunity. (Para 99)
        (2006)8 SCC 202 – Relied upon
        (p) Constitution of India – Interpretation – Basic structure – Formal rights of some power cannot become the foundation to whittle away powers that are necessarily implied in order to achieve national goals – 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. (Para 104)
        (1973) 4 SCC 225 – Relied upon
        (q) Constitution of India – Article 15(5) – Enlargement of the egalitarian content of the equality code ought not to necessarily be deemed as a derogation from the formal equality guaranteed by Article 14, 15(1) or 16(1). (Para 105)
        (2006) 8 SCC 202; (2008) 6 SCC 1; AIR 1963 SC 649; AIR 1964 SC 179; AIR 1976 SC 490; 1992 Supp (3) SCC 217 – Relied upon
        (r) Constitution of India – Article 15(5) – Even in the field of private sector, legislation to achieve social and economic justice cannot be held to be a violation of fundamental rights. (Para 107)
        (1977) 4 SCC 471; (2008) 6 SCC 1 – Relied upon
        (s) Constitution of India – Article 19(6) – Notwithstanding allowing private sector in the field of higher education, State retains the power to make amendments to the Constitution to partially control access to higher education, and achieve goals of egalitarianism and social justice. (Para 109)
        (t) Constitution of India – Article 38, 15(2) and 29(2) – Article 38 necessarily includes within its conception of “institutions informing our national life”, all institutions that perform the role of imparting higher education. (Paras 111, 112)
        (u) Constitution of India – Article 15(2) – A proper construction of clause (2) of Article 15 would in fact be to prohibit a complete dependence on entrance tests divorced from contexts such as social and educational backwardness – Therefore, reservations based on social and educational backwardness would 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. (Para 114)
        (v) Higher Education – Reservation – No data to support the contention that reserved category candidates have not participated or avoid to participate in innovative contexts – Similarly there is no data that standard of education in higher education institutions has declined, if at all, due to candidates from reserved categories – Case against reservation not made out. (Para 117)
        (w) Interpretation of Constitution – The meaning and purport of each article of the Constitution (including Fundamental Rights) has to be gleaned not only from the text of the article but also the meaning of that text as it may be further informed and transformed by other provisions in the other parts of the Constitution. (Para 121)
        GVK Industries Limited – Relied upon
        (x) Constitution of India – Article 15(5) – Clause (5) of Article 15 strengthens the social fabric in which the Constitutional vision, goals and values could be better achieved and served. (Para 122)
        (y) Words and Phrases – Tautology – A tautology is one in which the assumption contains all the elements of the conclusion in a logical argument – The power of tautological arguments is that they sound very reasonable – However, reasonableness is not to be looked 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. (Paras 126, 127)
        (z) Higher Education – Eligibility – Correct perspective – Appreciation of marks/grade system – Desirability of wider approach – Grades or marks may not be substantially accurate measure of ability to pursue higher education – There is also need to know how knowledge gained would be used by the wider society and its impact on society – Thirdly it is desirable that knowledge is generated and applied in diverse social contexts – To claim a right to distribute knowledge 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. (Paras 139, 140)
       Facts of the case:
        1. This case relates to admission to Private Non-Minority Unaided Professional Educational Institution.
        2. The question raised is : 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?
        3. The rule of ACMS that “only those students 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” is under challenge.
       Finding of the Court:
        1. The finding of the High Court that ACMS were neither an instrumentality of the State, nor could ACMS be held to be an aided educational institution not overruled. Division Bench was correct in holding that Ordinance 30 of GGSIU to be inapplicable in this case.
        2. Delhi Act 80 of 2007, and Section 12, including both sub-sections (1) and (2) are applicable with respect to admission of students to ACMS.
        3. 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 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.
        4. Provisions of clause (5) of Article 15 are not a violation of the basic structure, but in fact strengthen the basic structure of our constitution.
        5. The provisions of Delhi Act 80 of 2007, with respect to various categories of reservations provided therein are constitutionally valid.
       Result : Impugned judgment set aside. Appeal and writ petitions disposed of.

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 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.

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.

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 kindled The Argumentative Indian - Writings on Indian History, Culture and Identity, Picador (2006). 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 o

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2011 Supreme(SC) 521

Cases Referred (20)