After the Eleven-Judge Answer

The clarification

Facts. Islamic Academy of Education v. State of Karnataka, decided on 14 August 2003 by a Bench of five. The report we hold carries no report reference, so the case is given by its date. After Pai Foundation, the Union, the State Governments and the colleges each read the majority judgment to suit themselves, States passed new statutes and rules, and interim orders from several High Courts were challenged in the Supreme Court. At the parties' own request the matters went to five judges to clear up the doubts. Four questions were framed: whether the institutions could fix their own fee structure; whether minority and non-minority institutions stood on the same footing; whether private unaided professional colleges could fill all their seats; and whether they could evolve their own method of admission.

Held. Khare C.J., for himself and three others, held that "there can be no fixing of a rigid fee structure by the government", each institution being entitled to its own fee subject to there being no profiteering and no capitation fee. On the second question the Court refused to equate the two classes: "Non minority educational institutions do not have the protection of Article 30", and minority institutions "have preferential right to admit students of their own community/language". The management could fill its quota only from a common entrance test held by the State or by an association of colleges of that type, and not by a test of its own. Two directions did the damage. First, "different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college/s shall be separately fixed" by the State on the basis of local needs and, for a minority college, the needs of that community. Second, every State was to appoint two permanent committees, each headed by a retired High Court judge nominated by the Chief Justice, one to approve fees and one to supervise the entrance tests. That direction, the Court said, "has been passed under Article 142 of the Constitution of India which shall remain in force till appropriate legislation is enacted by the Parliament".

Why it matters. It shows that a clarification can enlarge what it clarifies. Pai Foundation had overruled the scheme framed in Unni Krishnan, under which courts fixed seats and fees. Islamic Academy, professing only to explain Pai Foundation, put a State power to fix quotas back, and put judge-headed committees back. That is why the next Bench was constituted, and why Islamic Academy must never be treated as stating the current law on quotas. On fees, and on the difference between minority and non-minority institutions, it is still good.

The correction

Facts. P.A. Inamdar v. State of Maharashtra, AIR 2005 SUPREME COURT 3226, 2005 (6) SCC 537, decided 12 August 2005 by a Bench of seven. Islamic Academy had settled less than it promised. Unaided professional colleges, minority and non-minority, came back complaining that States were appropriating seats under the "local needs" formula and that the committees were fixing fees so low that teachers were leaving. Four questions were taken up: appropriation of a quota by the State and enforcement of its reservation policy; the admission procedure of unaided institutions; the regulation of fees; and the validity of the two committees.

Held on quotas. The State cannot take seats. "Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions." Appropriation of seats is neither a regulatory measure permitted by article 30(1) nor a reasonable restriction under article 19(6). Paragraph 68 of Pai Foundation was to be read "as possible consensual arrangements which can be reached between unaided private professional institutions and the State". The scheme in Islamic Academy, so far as it allowed States to fix seat sharing, "does not lay down the correct law and runs counter to Pai Foundation". The answer to the first question was that "neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution".

Held on admissions, fees and committees. A common entrance test followed by centralised counselling is permissible and "does not cause any dent in the right of minority unaided educational institutions to admit students of their choice", the choice being exercised from the merit list without disturbing inter se merit. An institution's own procedure survives if it is fair, transparent and non-exploitative; failing any of those, the State may substitute its own. Every institution may devise its own fee structure, but capitation fee is forbidden outright and profiteering may be regulated. Not more than fifteen per cent of seats may be set apart for non-resident Indians. The two committees were upheld as "a stopgap or adhoc arrangement made in exercise of the power conferred on this Court by Article 142", lasting until legislation replaces them, their decisions open to judicial review.

Why it matters. MU has set this case by name, and what is set is the shape of the answer. Inamdar is the high point of institutional autonomy in Indian education law: it separates what the State may regulate, which is fairness, transparency and merit, from what the State may take, which is nothing. It also shows the Court policing its own creation, upholding the committees only as a temporary measure while asking Parliament to legislate. And it is the immediate cause of the Ninety-third Amendment, so a student who does not know Inamdar cannot explain why article 15(5) exists.

Reading the three decisions together

The Ninety-third Amendment

Parliament's answer came within months. The Constitution (Ninety-third Amendment) Act, 2005 inserted a new clause in article 15 with effect from 20 January 2006, a date taken from the Constitution's own footnote to the clause.

Article 15(5) reads: "Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far 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."

Four things follow from those words, and each is a mark in an answer.

1. It is an enabling clause, not a command. It says the State is not prevented. It creates no reservation by itself; a law is still required.
2. It overrides article 19(1)(g) expressly. That sub-clause guarantees the right "to practise any profession, or to carry on any occupation, trade or business", which is where the right to establish a private college was located. The amendment names it, because that was the right Inamdar had used.
3. It reaches unaided private institutions. That is the direct reversal of Inamdar on quotas.
4. It excludes minority educational institutions, by reference to article 30(1), which guarantees that "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." Article 15(5) does not touch them, so a minority institution stands where Inamdar left it.

The gap opened by the fourth point is the subject of [Minority Institutions and the Right to Education Act].

A worked example

Maharashtra passes a law requiring every private unaided professional college in the State to admit fifty per cent of its students from a list prepared by the State, and directs a minority-run engineering college in Pune to comply. The college challenges the law.

Step one, which article does the college start from? Article 19(1)(g), the right to carry on an occupation, which includes establishing and administering an educational institution, and, because it is a minority institution, article 30(1) as well.

Step two, what does Inamdar say about the fifty per cent? That appropriation of seats is not a regulatory measure under article 30(1) and not a reasonable restriction under article 19(6). On Inamdar alone the law fails.

Step three, does article 15(5) save it? For a non-minority college it may, if a law provides seats for socially and educationally backward classes or for the Scheduled Castes or Tribes. For this college it cannot, because article 15(5) applies to institutions "other than the minority educational institutions referred to in clause (1) of article 30".

Step four, is the college a minority institution at all? This is where the case is really fought, because the status has to be proved and on the eleven-judge answer the unit is the State: see [Who Is a Minority?].

Step five, what may the State still do? Insist on a common entrance test and centralised counselling, require transparency, forbid capitation fee, and regulate against profiteering. Inamdar permits every one of those. So the seat-sharing direction is bad against this college and the regulatory conditions are good, and that split is the whole of the modern law.

What it does NOT mean

It does not mean Islamic Academy was overruled. Inamdar disapproved one part, the fixing of quotas on local needs, and expressly upheld the two committees. A precise answer names the part that went and the part that stayed.

It does not mean private colleges are unregulated. Autonomy in Inamdar is autonomy from appropriation, not from regulation. Merit, transparency, no capitation fee and no profiteering are all enforceable.

It does not mean article 15(5) reversed the whole of Inamdar. It reverses Inamdar on quotas, only for the classes it names, and only where a law has been made. On admission procedure, on fees and on capitation fee Inamdar stands untouched.

It does not mean minority institutions may do as they please. Inamdar says a minority institution admitting outsiders beyond a limited extent loses its character, and if it does so "they lose the protection of Article 30(1)".

Quick revision

• Pai Foundation (2002, eleven judges) left paragraph 68 ambiguous about quotas in unaided professional colleges.
• Islamic Academy (2003, five judges): fee structure is the institution's own; minority and non-minority are not on the same footing; State may fix percentages on local needs; two permanent committees created under article 142.
• Inamdar (2005, seven judges): no quota or reservation may be appropriated by the State in any unaided institution, minority or not. Paragraph 68 means consensual arrangements only.
• Inamdar keeps the common entrance test, the triple test of fair, transparent and non-exploitative, the ban on capitation fee, the NRI cap of fifteen per cent, and the committees as a temporary measure.
• The Ninety-third Amendment 2005 inserted article 15(5) with effect from 20 January 2006, enabling reservation in private institutions, aided or unaided, but not in minority institutions under article 30(1).
• Article 15(5) is an enabling clause and expressly overrides article 19(1)(g).

Test yourself

1. Why did an eleven-judge decision need a five-judge clarification within a year? Point to the paragraph that caused the trouble.

2. State exactly which part of Islamic Academy did not survive Inamdar, and which part did.

3. What is the difference, on Inamdar, between the State regulating an unaided college and the State appropriating its seats?

4. Quote article 15(5) and identify the four limits built into its own words.

5. A State law reserves seats for backward classes in an unaided minority medical college. Set out the argument on both sides and say who wins.