Any attempt at interpretation of a long line of cases proves to be tiresome. Modern Dental College and Research Centre v. State of Madhya Pradesh, [Civil Appeal No. 4060 of 2009], 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 is thus no less by virtue of Modern Dental.

“In T.M.A. Pai Foundation, a Bench of 11 Judges dealt with issues of scope of right to set up educational institutions by private aided or unaided, minority or non-minority institutions and extent of Government regulation of said right. It was held, right to establish and administer an institution included right to admit students and to set up a reasonable fee structure. But, said right could be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure. Immediately after T.M.A. Pai Foundation, a group of petitions were filed in this Court, which were dealt with by a Bench of 5 Judges in Islamic Academy of Education. 4 Judges were same who were party to T.M.A. Pai Foundation. The issue considered was extent of autonomy in fixing fee structure and making admissions. Court held, while there was autonomy with 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, 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, unless admission procedure and fixation of fees is regulated and controlled at initial stage, evil of unfair practice of granting admission on available seats guided by paying capacity of candidates would be impossible to curb. Undoubtedly, right to establish and manage educational institutions is a fundamental right recognized under Article 19(1)(g). It also cannot be denied, this right is not ‘absolute’ and is subject to limitations i.e. ‘reasonable restrictions’ that can be imposed by law on exercise of rights that are conferred under Article 19(1). Those restrictions, however, have to be reasonable. While defining as to what constitutes a ‘reasonable restriction’, this Court in plethora of Judgments has held, ‘reasonable restriction’ seeks to strike a balance between freedom guaranteed by any sub-clause of Article 19(1) and social control permitted by any clause from (2) to (6). It is held, ‘reasonable’ connotes limitation imposed on a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in 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 set of rules determining 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 students under Article 14. Any law which creates an artificial classification between private unaided institutions and other institutions and creates a disparity in 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 rights of aspiring students guaranteed under Article 14. Right of 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 one hand and rights of students and public at large on other. However, law is now settled. In such cases where there is a conflict between fundamental right of two parties, right which would advance public morality or public interest would prevail.”

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It is too late for Icon Education Society to again seek to challenge validity of what has already been read by Court in Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.

– Hon’ble Justice Sanjay Kumar, Icon Education Society v. State of Madhya Pradesh, [Civil Appeal No. 1760 of 2023] decided on 17.03.2023.

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Doctrine of Proportionality has been expounded by this Court in a line of decisions, including in Association of Democratic Reforms v. Union of India, 2024 INSC 113. It comprises four prongs – (i) legitimate aim/purpose; (ii) rational connection; (iii) minimal impairment/necessity – this is to examine whether there should have been a less restrictive alternate measure that is equally effective; and (iv) balancing.

– Hon’ble Chief Justice of India, Hon’ble Justice Sanjiv Khanna, Radhika Agarwal v. Union of India, [Writ Petition (Criminal) No. 336 of 2018] decided on 27.02.2025.