PUSHPAGIRI MEDICAL SOCIETY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Kerala Education Bill, 1957 contained many provisions imposing considerable State control over the management of Educational institutions in the State of Kerala, aided or recognised. The provisions which affected the aided institutions were much more stringent than those which would apply only to recognised institutions. The width of power of control sought to be assumed by the State appeared to the President of India to be calculated to raise doubts as to the constitutional validity of some of the provisions of the Bill as an infringement of some of the fundamental rights guaranteed to the minority communities by the Constitution. The President under Art. 143 (1) of the Constitution of India sought opinion of the Supreme Court on questions of law of public importance that had far reaching consequences. The Supreme Court in Re. Kerala Education Bill, 1958 KHC 99 : 1958 KLT 465 : ILR 1958 Ker. 1167 : 1959 SCR 995 : AIR 1958 SC 956, for the first time dealt with the right of minority community to establish and maintain educational institutions and other related educational matters. Ever since the decision of the Supreme Court in Re. Kerala Education Bill case till date, the same very and other questions on education have engaged the High Courts and the Supreme Court in a marathon litigation spanned over a period of almost six decades. The leading five cases decided by the Supreme Court are Ahamedabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389 : 1975 (1) SCR 173 : 1974 (1) SCC 717, St. Stephens College v. University of Delhi, 1992 KHC 773 : 1992 (1) SCC 558 : AIR 1992 SC 1630; Unnikrishnan v. State of A. P, 1993 KHC 885 : 1993 (1) SCC 645 : AIR 1993 SC 2178, T. M. A. Pai Foundation v. State of Karnataka, 2002 KHC 1397 : AIR 2003 SC 355 : 2002 (8) SCC 481 and P. A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226 : 2005 (5) SLR 409 : 2005 (6) SCC 537, (hereinafter referred to as St. Xaviers case, St. Stephens case, Unnikrishnans case, T. M. A. Pai Foundation case and Inamdars case respectively ).

(2.) THE second ever largest Bench consisting of eleven Judges was constituted culminating into the decision in T. M. A. Pai Foundation when the judgment rendered by the Supreme Court in St. Stephen was doubted. The Supreme Court in T. M. A. Pai Foundation framed eleven questions to be answered by it, some of which were answered and some left to be decided by the regular Bench. Even though one of the ever largest Bench was constituted, the aftermath of the decision in T. M. A. Pai Foundation was not encouraging. The Bench consisting of 11 Honourable Judges gave five opinions, the majority decision was delivered by the then Chief Justice; the four Honourable Judges delivered three separate opinions partly dissenting from the majority view. The interpretation of the judgment of the Supreme Court in T. M. A. Pai Foundation almost became a game to be played by the State Governments and also the educational institutions, who would interpret the majority opinion in their own way. This lead to flooding the courts at all levels with multi faceted and multi dimensional litigations. The chaos that resulted because of the rival parties interpreting the judgment of the Supreme Court in their own way paved way for constitution of yet another Bench of five Judges in Islamic Academy of Education v. State of Karnataka, 2003 KHC 1370 : 2003 (3) KLT SN 118 : AIR 2003 SC 3724 : JT 2003 (7) SC 1 : 2003 (6) SCC 697, (hereinafter referred to as Islamic Academy of Education case) wherein as well two opinions were expressed, one by a majority of four Honourable Judges, delivered by the then Chief Justice, whereas the other by one Honourable Judge, who delivered a separate judgment. Despite the judgment in Islamic Academy of Education, it was accepted both by the Government and by the privately managed aided or unaided institutions that the position in law was still not clear. There were still unsettled issues and there was still no clarity in the decision of eleven Judges in T. M. A. Pai Foundation, thus resulting into constitution of seven Judges Bench in P. A. Inamdars case. Indeed by this decision, some of the issues have been settled whereas, concededly, some still need to be settled and the cases including such unsettled points are still pending decision of the Supreme Court, one of which pertains to the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fee and Procedure for Admission and Fixation of Fees) Act, 2004 (hereinafter referred to as Act of 2004 ). It is at this stage when the judiciary in the country has struggled for more than half a century to find out solutions to some of the educational related problems and when answer to those problems is still awaited and when so far the challenge to the Act of 2004 is still alive, the Government of Kerala has come up with the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 (hereinafter referred to as Act of 2006 ). To the questions already debated, answered or unanswered, many more dimensions have been added. Sea changes of far reaching consequences have been made. The admission of students in all professional colleges or institutions for all seats except NRI seats is now to be made through Common Entrance Test conducted by the State Government, irrespective of any judgment, decree or order of any court or any other authority. The right of management institutions, whether aided or unaided, whether run by the religious minority or otherwise, to make `admissions have been completely taken away. The fee structure has to be determined by the Regulatory Committee and the same shall be binding on unaided professional colleges or institutions for a period of three years. Whatever rights the management had earlier with regard to determination of fee have also been taken away. The status of the minority institutions now, for the first time, shall be determined by Government on factors enumerated in S. 8. By virtue of judicial precedents, the status of minority institution was to be determined on the basis of percentage of population of a particular religious minority taking State as a Unit. In addition to this condition for determination of minority status of an institution, further conditions that the number of professional colleges or institutions run by the linguistic or religious minority community in the State shall be proportionately lesser than the number of professional colleges or institutions run by the non-minority community in the State and that the number of students belonging to the linguistic or religious minority community to which the college or institution belongs undergoing professional education in all professional colleges or institutions in the State shall be proportionately lesser than the number of students belonging to the non-minority community have been added. In the words of the Honourable Supreme Court dealing with the appeals arising from the interim directions issued by this Court in these very cases, there are drastic changes in the Act of 2006 in the mode of admission and also determination of minority status of the institution. The petitioners take strong exception to the provisions dealing with the right of admission of students, determination of status of a minority institution, fee structure and other provisions in the Act of 2006. The contentions raised in challenging the provisions of the Act of 2006 match with the long title and preamble of the Act.

(3.) WE may also mention that at the time of admission of the case, petitioners sought stay of operation of the Act. A Single Bench of this Court before whom these petitions came up for initial hearing on the prayer made by the petitioners issued interim directions that the procedure with regard to sharing of seats between the Government and the Managements of Self Financing Institutions and also the fee structure as envisaged under the Act of 2004 would govern the field for this academic year, 2006-2007, vide orders dated 18th July, 2006. Aggrieved, the State preferred appeals which were dismissed by a Division Bench of this Court vide orders dated 29th July, 2006. Still aggrieved, the State preferred appeals to the Supreme Court which were dismissed by the Honourable Supreme Court vide orders dated 25th August, 2006.