R

BEFORE THE HON’BLE SUPREME COURT OF DHARMALOK

C.M.R. LAW SCHOOL

MUNICIPAL MOOT COURT COMPETITION, 2017

ASSOCIATION OF PRIVATE AND MINORITY

EDUCATIONAL INSTITUTIONS

PETITIONER

V.

UNION OF DHARMALOK

RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS
1. Table of Contents ___________________________________ 1

2. Table of Cases ______________________________________2

3. List of Abbreviations _____________________________________ 3

4. Index of Authorities ___________________________________4

5. Statement of Jurisdiction ___________________________________5

6. Statement of facts ___________________________________6

7. Issues for consideration ___________________________________7_

8. Summary of Arguments ___________________________________8_

9. Written Submission _______________________________ 9 - 21

I. THE LAW DOES NOT VIOLATE THE FUNDAMENTAL RIGHTS OF

THE PRIVATE AND MINORITY EDUCATION INSTITUTIONS AND ASSOCIATIONS

10. Prayer _________________________________ 22

11. Webliography ___________________________________23

MEMORIAL ON BEHALF OF THE RESPONDENT

 TABLE OF CASES

 Ahmedabad St. Xaviers College v. State Of Gujarat & Anr , 1974 AIR 1389
 Frank Anthony Public School Employees' Association vs Union of India A I R (1987) SC 311
(1986) 4 SCC 707
 In re: Kerala Education Bill v. Unknown , 1959 1 SCR 995
 Jalan Trading Company v. D. M. Aney AIR (1979) SC 233 : (1979) 3 SCC 220
 Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir AIR 1980 SC 1992 :(1980) 4 SCC 1
 Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 at 1641 : (1973) 4 SCC 225
 Maneka Gandhi v. Union of India AIR (1978) SC 597 : (1978) 1 SCC 248
 Minor S. Aswin Kumar, Rep. By His ... vs State Of Tamil Nadu 2007 (2) CTC 677
 Municipal Corporation Ahmedabad v. Jan Muhammad Usmanbhai (1986) 2 SCC 20
 Narendra Kumar v. Union of India AIR(1960) SC 430: (1960) 2 SCR 821
 Olga Tellis v Bombay Municipal AIR (1986) SC at 194 :(1985) 3 SCC 545
 P. A. Inamdar v. State of Maharashtra AIR 2005 SC 3226
 Papnasam Labour Union vs Madura coats Limited AIR (1995) SC 2200: (1995) 1 SCC 501
 Pathuma v. State of Kerala AIR (1978) SC 771 : (1978) 2 SCC 1
 Prof. Yashpal & Anr vs State Of Chhattisgarh & Ors on 11 February, 2005 supreme court
 Saurabh Chandigarh v. Union of India (2003) 11 SCC 146: AIR 2004 SC 361
 Saurabh Chandigarh v. Union of India (2003) 11 SCC 146: AIR 2004 SC 361
 Society for Unaided P. School of Rajasthan v. Union of India AIR 2012 SC 3445
 State of Bombay ve. Balsara AIR (1951) SC 318
 T.M.A. Pai Foundation & Ors v. State Of Karnataka & Ors AIR (2003) SC 355
 The Roman Catholic Society Of The ... vs The Government Of Tamil Nadu, (1991) 2 M.L.J. 440
 UnniKrishnan v. state of A. P (1993) SCC 1645
 Workmen, Meenakshi Mills Ltd v. Meenakshi Mills Ltd A.I.R. 1994 SC 2696 at 2713

MEMORIAL ON BEHALF OF THE RESPONDENT

 LIST OF ABBREVIATIONS

1. AIR - All India Reporter

2. Art. - Article

3. Govt.- Government

4. HC- High Court

5. Hon’ble- Honourable

6. In re- In reference

7. Ker- Kerala

8. Ltd.- Limited

9. No.- number

10. Pol.- Policy

11. Pvt.- Private

12. Ref.- Reference

13. SC- Supreme Court

14. SCC- Supreme Court Cases

15. SCR - Supreme Court Reviews

16. v.- Versus

MEMORIAL ON BEHALF OF THE RESPONDENT

 INDEX OF AUTHORITIES

STATUTES:-

1. The Constitution of India

2. National Commission for Minority Educational Institutions Act, 2004.

BOOKS AND AUTHORITIES:-

1. Shukla, V.N. , Constitution of India – Tenth Edition

2. Jain, M.P., Indian Constitutional Law – Sixth and Seventh Edition

3. Dr Pandey J. N., Constitutional Law of India – Fifty First Edition

4. Madras Law Journal – 1991, Second Volume

INTERNATIONAL INSTRUMENTS:-

Universal Declaration of Human Rights (1948)

CONSTITUTIONAL LAW:-

1. ARTICLE 30(1)

2. ARTICLE 19(1)(G)

3. ARTICLE 19(G)

4. ARTICLES 36-51A

MEMORIAL ON BEHALF OF THE RESPONDENT

 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Dharmalok has jurisdiction in this matter under Art 32 of the
constitution of Dharmalok which read as follows:

(1) The right to move the Supreme court by appropriate proceedings for the enforcement
of the rights conferred by this part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari whichever may be appropriate, for the enforcement of any of the rights
conferred by this part.

(3) Without prejudice to the powers conferred on the supreme court by (1) (2), parliament
may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the supreme court under (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this constitution.

MEMORIAL ON BEHALF OF THE RESPONDENT

 STATEMENT OF FACTS

Ensuring a proper, effective and conducive educational system is high priority for the State of
Dharmalok. Dharmalok is a country: it's social, legal, cultural, economic conditions and systems are
similar to that of India.

In Dharmalok, educational rights are recognized as fundamental rights under the Constitution of
Dharmalok including the rights of minority based on religion or language to establish and
administer educational institutions of their choice and certain aspects pertaining to education are
also provided in the Directive Principles of State Policy.

The educational institutions must have recognition or affiliation for which State makes adequate law
that also contained the threshold aspects on prescribing age, qualifications and syllabus and so on and
so forth. Such law affected the private and minority institutions of Dharmalok as it allowed
interference of State in its nominations to such institutions, prescribing the fees, recruitment,
conducting entrance examination, reservation of seats, counselling during admission (including
professional education) for the private (aided and unaided) and minority institutions.

The Dharmalok private and minority institutions that impart quality modern education consider this
move by the State affecting their autonomy, independence and rights provided under the Dharmalok
Constitution.

The private and minority institutions form an association to represent their concerns and approach by
way of writ before the Supreme Court of Dharmalok. The association seeks to strike down the law
that enables interference of States in the affairs of activities of the educational institutions and to
declare such law as unconstitutional because such law imposed unreasonable restrictions and infringes
fundamental rights of the private and minority institutions.

The State defends it's move claiming that the law imposed only reasonable restrictions and they do
not violate the rights of the institutions or association under the Dharmalok Constitution, as
fundamental rights are not absolute.

The apex court admitted the said Writ Petition and the matter is now posted for final arguments.

MEMORIAL ON BEHALF OF THE RESPONDENT

 ISSUE RAISED

I. WHETHER THE LAW VIOLATES THE FUNDAMENTAL RIGHTS OF THE

PRIVATE AND MINORTY EDUCATIONAL INSTITUTION AND ASSOCIATION?

MEMORIAL ON BEHALF OF THE RESPONDENT

 SUMMARY OF ARGUMENTS

THE LAW DOES NOT VIOLATE THE FUNDAMENTAL RIGHTS OF THE PRIVATE AND

MINORTY EDUCATIONAL INSTITUTIONS AND ASSOCIATIONS.

It is most humbly submitted that the state has complete jurisdiction to enact the
laws for governing the private minority universities. ‘Education’ comes under the
Concurrent list and Union list of the Dharmalokan Constitution, and the Parliament
and State Legislature can make any law regarding these entries.
Moreover, the National Commission for Minority Educational Institutions Act 2004
permits the state government to regulate the private minority universities. The
judicial pronouncements have also conferred sufficient authority on the state
government in the matters of fixation of seats in the private minority universities.
No fundamental right of the petitioners has b e e n v i o l a t e d .
Further , the rights provided under Article 19(1)(g), 29 and 30 are not absolute and can be subject to
certain Reasonable Restrictions Under article 19(g).
The Directive Principle of State policy, obligates the state to make laws so as to benefit the people of the
country in terms of socio-economic development . These principles obligate the state to take
positive action in certain directions in order to promote the welfare of the people who can get
a Job through their Education in turn increasing their standard of living . This therefore
plays an important role in socio-economic realm of any nation as even economic growth
depends on Education. Hence certain reasonable restrictions can be imposed by the State to
regulate these institutions for excellence.

MEMORIAL ON BEHALF OF THE RESPONDENT

 ARGUMENTS ADVANCED

THE LAW DOES NOT VIOLATE THE FUNDAMENTAL RIGHTS OF THE PRIVATE AND

MINORTY EDUCATIONAL INSTITUTIONS AND ASSOCIATIONS.

It is most respectfully and humbly submitted before this Hon’ble court that the adequate law
regarding education of private and minority educational institutions and associations does not
violate the fundamental rights guaranteed to the citizens under theConstitution of Dharmalok.

Article 30(1) of the Constitution of India reads as:

“ All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice”.1

But Fundamental rights are not absolute rights and are subject to reasonable restrictions.
This can be substantiated with the following points.

A. Power of Government To Regulate Minority Educational Institutions.

Administration of an institution requires constant interaction among the management

of the institution and the government. As the interest of two is different, this generates many
conflicting situations. The government has the power to regulate minority run educational
institution. The right conferred on the religious and linguistic minorities to administer
educational institutions of their own choice is not an absolute right.

As Justice Reddy J says “ the only purpose that the fundamental right under article 30(1)
would serve in that case be that minorities may establish their own institutions, lay down
their own syllabi, provide instructions in the subject of their choice conduct examinations
and award degrees or diplomas”. 2

Thus right under article 30(1) is not free from regulation. Just as regulation are necessary for
maintaining educational character and content of minority institution similarly regulatory
measures are necessary for ensuring orderly , efficient and sound administration..

The case of St Xavier’s college specifies the scope of control over the minority institutions.
According to Chief Justice Ray, the government can regulate course of the study,

___________________________________________________________________________
1
Article 30(1) of The Constitution Of India
2
The Roman Catholic Society Of The ... v. The Government Of Tamil Nadu, (1991) 2 M.L.J. 440

MEMORIAL ON BEHALF OF THE RESPONDENT

Qualification and appointment of teachers, health and hygiene of students, facilities for
libraries and laboratories. The court also talked of such measures as would bring about
uniformity, efficiency and excellence in educational matters.3 Further to the conditions of
merit, Excellency and uniformity, the court states “the right to administer cannot obviously
include right to maladminister”. 4

To further substantiate, several State Legislations have been enacted to regulate the private
minority universities.

These statutes have provided the authority to the state governments to regulate the
private and minority universities. For example the Karnataka Professional
Educational Institutions (Regulation of Admission and Fixation of Fee) (Special
Provisions) Act, 2006 empowers the Karnataka State to make laws for the fixation of the
seats in the private minority universities. 5

B. Education forms a part of the Concurrent List (List-III).

“Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the
Legislature of any State also, have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this Constitution referred to as the
Concurrent List)”.6
The Centre can make laws on the subjects mentioned in the concurrent list.
Education forms the part of the Concurrent List3 Entry 25 of the List-III or the Concurrent List

Entry 25 of the List mentions in the explicit terms the authority of the states to enact laws on the
subject of education. The entry 25 reads as follows: “ Education, including technical
education, medical education and universities, subject to the provisions of entries 63, 64,
65 and 66 of List I; vocational and technical training of labour”.7

___________________________________________________________________________
3
The Ahmedabad St. Xaviers College v. State Of Gujarat & Anr , 1974 AIR 1389
4
In re: Kerala Education Bill v. Unknown , 1959 1 SCR 995
5
Section 5 of The Karnataka Professional Educational Institutions (Regulation of Admission and Fixation of
Fee) (Special Provissions) Act, 2006
6
Section(2) of Article 246 in The Constitution Of India, 1949
7
Jain, M.P., Indian Constitutional Law , Sixth Edition 566

MEMORIAL ON BEHALF OF THE RESPONDENT

The use of the expression "subject to" means that out of the general heading "Education",
the matters contained in entries 63 - 66 in list I have been carved out. It means that if a matter
is covered by any of the entries 63 - 66 in list I, the power to legislate on that matter lies
exclusively with the Parliament even though that matter may otherwise fall within the
broader field of "Education". This means that, entry 66, in list I and entry 25 in list III
should be read together.

In the absence of any Parliamentary Act, the State still has competence to enact a statute
laying down reservation for entry in any course of study including the medical courses. 8

Under entry 66, list I, the centre has the power to see that are required standard of Higher
Education in India is maintained.9

Similarly, the state legislatures are empowered to enact laws on the subjects of
List-II and List-III. Thus, both the Parliament as well as the state legislatures has the
jurisdiction to enact laws on the subjects of the Concurrent List. Therefore the
respondents have the complete jurisdiction to impose reasonable restrictions so as to see
that there are no irregularities or misuse of power.

C. Fundamental Rights are subject to Reasonable Restrictions.

Article 19(6) in The Constitution reads as
“Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business.”10

Article 30(1)

of the Constitution Guarantees that

“All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice”
___________________________________________________________________________
8
Saurabh Chandigarh v. Union of India (2003) 11 SCC 146: AIR 2004 SC 361
9
Jain, M.P., Indian Constitutional Law, Sixth Edition 566

10
Clause(6) of Article 19 in The Constitution Of India, 1949

MEMORIAL ON BEHALF OF THE RESPONDENT

The Rights granted to the minorities under Article 30 of the Constitution of India are not of
absolute nature. The Apex Court in the Judgment of
D.A.V. College Trust and Management Society v. State of Maharashtra and Anr11
pointed out that;

“though Article 30 itself does not lay down any limitation upon the right of a minority to
administer its educational institution but this right is not absolute. This is subject to
reasonable regulations for the benefit of the institution. The State Government and
Universities can issue directions from time to time for the maintenance of the standard
and excellence of such institution which is necessary in the national interest.”

Article 19(1)(g) Guarantees that all citizens shall have the right

" to practice any profession, or to carry on any occupation, trade or business ".12

However the right to carry on a profession, trade or business is not unqualified. It can be
restricted and regulated by authority of law. Thus, the State can under clause (6) of article 19
make any law -
(a) imposing reasonable restriction on this right 'in the interest of public',

(b) Prescribing professional or technical qualifications necessary for practicing any

profession or carrying on any occupation, trade or business,

(c) Enabling the state to carry on any trade or business to the exclusion of citizens wholly or
partially.

In P. A. Inamdar v. State of Maharashtra13

It has been held that “The right to establish an educational institution, for charity or for
profit being an occupation is guaranteed under the constitution to all citizens under article
19 (1) (g) and to minorities under article 30. ‘ Education' even though is an Occupation but it
cannot be equated with trade or business. In short, Education is National wealth essential
for the Nation's progress and prosperity. Article 30 is intended to instill confidence in
minorities against any encroachment by the executive or legislature.
Article 19 (1) (g) is subject to reasonable restrictions under clause (6) of article 19.
Article 30 has been therefore enacted to give them additional protection.
However, merely because article 30(1) has been enacted minority educational
institutions do not become immune from the operation of regulatory measures because the
right to administer does not include the right to mal-administer”.
Grounds of restriction under Clause (6) of Article 19, the State is authorized to impose
reasonable restrictions on the right to Carry on a trade, profession or business the conditions

___________________________________________________________________________
11
paragraph No.32 (2013) 4 SCC 14

12
Sub-clause (g) of Clause (1) of Article 19 in The Constitution Of India, 1949
13
AIR 2005 SC 3226

MEMORIAL ON BEHALF OF THE RESPONDENT

is that the restrictions must be:
(1) Reasonable, and

(2) In the interest of general public.

In determining the reasonableness of the restrictions imposed by law under article 19 (6), the
court cannot proceed on a General notion of what is reasonable in the Abstract or even on
consideration of what is reasonable from the point of view of the persons whom the
restrictions are imposed. The expression 'in the interest of general public' in Article 19(6) is
of wide import comprehending public order, Public Health, public security,
morals, economic welfare and the objects mentioned in Part IV of the Constitution. Nobody
can dispute a law providing for basic amenities for the dignity of human labour as a social
welfare measure. 14

In Society for Unaided P. School of Rajasthan v. Union of India 15

the supreme court held that "the State can regulate by law, the activities of private
institutions by imposing reasonable restrictions under 19(6)".

For Professional and Technical Qualifications - The State can by law prescribe
professional or technical qualifications necessary for practicing any profession or carrying on
any occupation, trade or business for example it can prescribe that one who wants to set up in
medical practice should have studied a course in medicine and surgery and should have
passed MBBS examination or one who wishes to be a lawyer must have passed LL.B.
examination from any established University.
Some of the existing Indian Acts which regulate professions requiring qualification,
discipline, etc. Are: The Advocates Act, The Bar Councils act Indian Medical Degrees Act,
The Pharmacy Act, The Medical Councils Act etc.16

Complete freedom to Institutions would be ultra vires. In UnniKrishnan v. state of A. P.,17

It has been held that the right to establish an educational institution and imparting education
is not a commercial activity. Such activity can neither be a trade or business nor can it be a
profession within the meaning of Article 19(1)(g). Trade or business normally connotes an
activity carried on with a profit motive. Education has never been commerce in this country.

To make and take precautions against exploitation of both teachers and students by the
institutions, the state has kept certain reasonable restrictions to be followed by the educational
institutions. Else, these institutions could charge capitation fees from the vulnerable students,
blackmail staff, may not maintain a clean environment, hygiene and overall , be corrupt and
would be of the view that they are not answerable to anyone.
___________________________________________________________________________
14
Municipal Corporation Ahmedabad v. Jan Muhammad Usmanbhai (1986) 2 SCC 20
15
AIR 2012 SC 3445
16
Dr Pandey JN, Constitutional Law of India, 51st edition Pg 231
17
(1993) SCC 1645

MEMORIAL ON BEHALF OF THE RESPONDENT

D. Directive Principles of State Policy and Fundamental Rights together constitute
the Conscience of The Constitution

The Directive Principles of State Policy are also relevant in considering whether a
restriction on a fundamental right is reasonable or not. A restriction which promotes a
directive principle is generally regarded as reasonable. 18

As the supreme court has observed in

Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, 19
"Any action taken by the government with a view to giving Effect to any one or more of the
Directive Principles would ordinarily, subject to any constitutional or legal inhibition or
Other overriding considerations, qualify for being regarded as reasonable, while an action
which is inconsistent with or runs counter to a Directive Principle would incur the
reproach of being unreasonable. So also the concept of public interest must as far as possible
receive it from the directive principles".

Maneka Gandhi v. Union of India20 It was held that

The Directive Principles of the State Policy are bound to regulate aspects pertaining to
the socio-economic welfare which includes Education and hence the State has sufficient
authority to ensure the same, guaranteed by Part IV of the Constitution.

In Papnasam Labour Union vs Madura coats Limited 21 The Supreme Court has stated
that the certain principles should be kept in view while considering the constitutionality of a
statutory provision imposing restrictions on Fundamental Rights guaranteed by article 19
(1)(a) to (g) when challenged on the ground of unreasonableness of the restriction imposed by
it.
The relevant principles in this case are:

(g) The rights guaranteed to citizen by Article 19, do not confer any absolute or
unconditional right. Each right is subject to reasonable restriction which the Legislature may
impose in Public Interest. It is therefore necessary to examine whether such restriction is
meant to protect social welfare satisfying the need prevailing social values.

(j) In judging the reasonableness of the restriction imposed under article 19(6), the court has
to bear in mind Directive Principles of State Policy.

(k) Ordinarily any restrictions so imposed which has the effect of promoting or effectuating a
Directive Principle can be presumed to be Reasonable Restriction in Public Interest.

18
State of Bombay ve. Balsara AIR (1951) SC 318: Lakshmi Kandsari v. State of Uttar Pradesh AIR 1981 SC
873: (1981) 2 SCC 600.
19
AIR 1980 SC 1992 :(1980) 4 SCC 1
20
AIR (1978) SC 597 : (1978) 1 SCC 248 Union of India versus Hindustan Development Corporation AIR
1994
21
AIR (1995) SC 2200: (1995) 1 SCC 501

MEMORIAL ON BEHALF OF THE RESPONDENT

Under certain circumstances therefore, depriving a citizen of his fundamental right may be
regarded as Reasonable. 22
In conclusion it has been held that in judging the Reasonableness of restrictions imposed by
article 19 (6) the court has to bear in mind the directive principles.

It was held in Jalan Trading Company v. D. M. Aney 23 that a statutory obligation to pay
the statutory minimum bonus by the employers
to the Employees even when the employer sustained loss has been held to be Reasonable
and in Public Interest as this is an implementation of the Directive Principles in article 39 and
43. What is sanctioned by the Directive Principles cannot be regarded as unreasonable or
contrary to public interest in the context of article 19.

CONDUCTING ENTRANCE EXAMS, COUNSELLING FOR ADMISSION.

In certain States there may be different boards with different examining bodies who may be
lenient or liberal compared to some stringent ones, and in case of different boards, the state
needs to conduct a common entrance exam to bring about uniformity and equality to
admission in universities. It was held that
“In States having more than one university/board/examining body, an entrance
examination is mandatory. This is because, as pointed out in the aforesaid decisions of the
Supreme Court, different examining bodies have different standards of marking, different
syllabus, etc., and hence a student who appears for the examination conducted by an
examining body which is stringent in granting marks will be discriminated against vis-à-vis
a student who appears for the examination conducted by an examining body which is
liberal in granting marks. This will be violative of Article 14 of the Constitution as held in
the aforesaid decisions” 24
The state is bringing about uniformity and equality and in the process making a uniform
study to one and all, in this aspect, and also increasing competition and quality and quantity
of the future citizens , all, simultaneously.

T.M.A. Pai Foundation & Ors v. State Of Karnataka & Ors 25

held that "It is quite true that there is no entitlement to State grant for minority
educational institutions. There was only a stop-gap arrangement under Article 337 for the
Anglo-Indian community to receive State grants. There is no similar provision for
other minorities to get grant from the State. But under Article 30(2), the State is under an
obligation to maintain equality of treatment in granting aid
to educational institutions. Minority institutions are not to be treated differently while giving
financial assistance. They are entitled to get the financial assistance much the same way as
the institutions of the majority communities.".
22
Narendra Kumar v. Union of India AIR(1960) SC 430: (1960) 2 SCR 821
23
AIR (1979) SC 233 : (1979) 3 SCC 220
24
Minor S. Aswin Kumar, Rep. By His ... vs State Of Tamil Nadu 2007 (2) CTC 677
25
AIR (2003) SC 355

MEMORIAL ON BEHALF OF THE RESPONDENT

At the same time, the admissions to aided institutions, whether awarded to minority or non-
minority students, cannot be at the absolute sweet will and pleasure of the management
of minority educational institutions. As the regulations to promote academic excellence
and standards do not encroach upon the guaranteed rights under Article 30, the
aided minority educational institutions can be required to observe inter se merit amongst the
eligible minority applicants and passage of common entrance test by the candidates, where
there is one, with regard to admissions in professional and non-professional colleges.
If there is no such test, a rational method of assessing comparative merit has to be evolved.
As regards the non-minority segment, admission may be on the basis of the common
entrance test and counseling by a state agency.
In the courses for which such a test and counseling are not in vogue, admission can be on the
basis of relevant criteria for the determination of merit. It would be open to the state
authorities to insist on allocating a certain percentage of seats to those belonging to weaker
sections of society, from amongst the non-minority seats.
In professional institutions merit has to play an important role and that excellence in
professional education required that for purposes of admission merit is determined by
Government agencies hence it is required to conduct entrance examinations for admission
The secular state tries its best, being obligated, so as to find solutions and tackle its
Socio-Economic problems.

Directive Principles and Fundamental Rights are supplementary and complementary to each
other. They both need to be considered and go hand in hand. But, reiterating the Workmen,
Meenakshi Mills Ltd v. Meenakshi Mills Ltd 26 “any restrictions so imposed which has the
effect of promoting or effectuating a Directive Principle can be presumed to be Reasonable
Restriction in Public Interest.”

In the Frank Anthony Public School Employees' Association vs Union of India 27

The salary scales prevalent in the Government schools are higher but those in unaided
minority schools are much lower. The union sought declaration that this situation is
discriminatory and sought its invalidation under Article 14.

Section 12 of the Delhi School Education Act says that the grades prevalent in the
government schools would not apply to unaided minority schools. On this question, the
Supreme Court has observed that “The excellence of the instruction provided in an institution
depends directly on the quality and the contentment of the teaching staff. Conditions of
service pertaining to minimum qualification of teachers, their salaries, allowances and
other conditions of service which ensure security, contentment and decent living
standards to teachers will enable them to render better service to the Institution and
this cannot be regarded as violative of Article 30(1). “the management of minority
educational institution cannot be permitted under the guise of fundamental rights guaranteed
by Article 30(1) of the constitution to oppress or exploit its employees any more than any
other private employee "
___________________________________________________________________________
26
A.I.R. 1994 SC 2696 at 2713
27
A I R (1987) SC 311 (1986) 4 SCC 707

MEMORIAL ON BEHALF OF THE RESPONDENT

These terms are statutory and regulate terms and conditions of service teachers and
other employees of minority educational institutions. These are instructions for maintaining
educational excellence and standards and it was held not violative of Article 30(1)

E. Directive Principles of State Policy strives to attain Growth, Prosperity and well
being of the People of the Country of Dharmalok.

Directive Principles of State Policy aim to create social and economic conditions under
which the citizens can lead a good life. They also aim to establish social and economic
democracy through a welfare state.
Article 41 states “Right to work, to education and to public assistance in certain cases The
State shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want”.28

Article 38 (1) states “The State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life”.29

Article 46. states “The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social injustice and all forms of
exploitation”.30

This Article obligates estate to promote with special care the educational
And economic interest the weaker sections of the people and in particular of the scheduled
caste and Scheduled Tribes and protect them from social injustice and forms of exploitation.
It requires the state to take special care in promoting educational and economic interests
of the weaker sections of the people and and particular, of the schedules castes and
schedule Tribes. 31

Article 48 requires the state to promote the Welfare of the people by securing a social order
based on Justice.32

Kesavananda Bharati v State of Kerala33 Hegde and Mukherjee JJ observed

" The fundamental rights and Directive principles constitute the " conscience of the
Constitution... " There is no antithesis between fundamental rights and Directive principles...
and one supplements the other"
___________________________________________________________________________
28
Article 41 in The Constitution Of India, 1949
29
Clause (1) of Article 38 in The Constitution Of India, 1949
30
Article 46 in The Constitution Of India, 1949
31
Jain, M.P., Indian Constitutional Law , 6th Edition at pg 1525
32
Article 48 in The Constitution Of India, 1949
33
AIR 1973 SC 1461 at 1641 : (1973) 4 SCC 225

MEMORIAL ON BEHALF OF THE RESPONDENT

In Pathuma v. State of Kerala 34 The Supreme Court has emphasized that the purpose of
the Directive Principles is to fix certain socio-economic goals for immediate attainment by
bringing about nonviolent social revolution. The constitution aims at bringing about
synthesis between Fundamental rights and Directive principles.

The Supreme Court has argued in Olga Tellis v Bombay Municipal35 that since the
directive principles are fundamental in the Governance of the country they must therefore be
regarded as equally fundamental to the understanding and interpretation of the meaning and
content of the fundamental rights

Unnikrishnan v. State of AP 36
Right to education implicit in article 21 is to be spelled in the light of Directive Principles
contained in article 41 and 45

Similarly Article 15 (5) introduced by the Constitution (93rd Amendment) Act 2005
empowers the state to make special provision for socially and educationally backward classes
or for scheduled castes and tribes with regard to their admission to educational institutions
including private educational institutions.37

Besides the fundamental rights, and Directive principles of the state to ensure the Welfare of
certain sections of people

Education plays a vital role in the development of any nation. Therefore, there is a premium
on both quantity (increased access) and quality (relevance and excellence of academic
programmes offered) of higher Education. Welfare of the State directly depends on
Education, hence it is a part of the Socio-economic issues, a country faces. The State is
obligated through the Directive Principles of State Policy to modulate the same
for public interest.

Olgas Tellis v. Bombay Municipal Corporation138 Chandrachud, CJ observed that:

"Article 39 (a) of the constitution, which is a Directive Principles of State Policy, provides
that the State shall, in particular, direct its policy towards securing that the citizens, men and
women equally have the right to an adequate means of livelihood. Article 37 provides that the
Directive principles, although not enforceable by any court, are nevertheless fundamental
in the governance of the country. The principles contained in Article 39 (a) and 41 must be
regarded as equally fundamental in the understanding and interpretation of the meaning

34
AIR (1978) SC 771 : (1978) 2 SCC 1.
35
AIR (1986) SC at 194 :(1985) 3 SCC 545
36
AIR (1993) SC 2178: (1993) 1 SCC 645
37
Ashoka Kumar Thakur vs Union of India (2008) 6 SCC 1 :(2008) 5 JT 1
38
Supra 35 at 180

MEMORIAL ON BEHALF OF THE RESPONDENT

and content of fundamental rights. If there is an obligation upon the State to Secure to the
citizens and adequate secure means of livelihood at the right to work, it would be sheer
pedantry to exclude the right to livelihood from the content of the right to life".

These principles obligate the state to take positive action in certain directions in order
to promote the welfare of the people who can get a Job through their Education in turn
increasing their standard of living . This therefore plays an important role in socio-economic
realm of any nation as even economic growth depends on Education.

With regard to the ambit of the constitutional guarantee of protection of educational rights of
minorities under Article 30, that both religious and linguistic minority, as held in
Pai Foundation39, are to be determined at the State level.
On this understanding of the concept of 'minority', Article 30 has to be harmoniously
construed with Article 19(1)(g) and in the light of the Directive Principles of the State
Policy contained in the Articles 38, 41 and 46. Rights of minorities cannot be placed higher
than the general welfare of the students and their right to take up professional education
on the basis of their merit.
The real purpose of Article 30 is to prevent discrimination against members of the minority
community and to place them on an equal footing with non-minority. Reverse discrimination
was not the intention of Article 30. If running of educational institutions cannot be said to be
at a higher plane than the right to carry on any other business, Reasonable restriction similar
to those placed on the right to carry on business can be placed on educational institutions
conducting professional courses. For the purpose of these Restrictions both minorities and
non-minorities can be treated at par and there would not be any violation of Article 30(1),
which guarantees only protection against oppression and discrimination of the minority from
the majority. Activities of education being essentially charitable in nature, the educational
institutions both of non-minority and minority character can be regulated and controlled so
that they do not indulge in selling seats of learning, to make money. They can be allowed to
generate such funds as would be reasonably required to run the institute and for its further
growth. 40

Universal Declaration of Human Rights (UDHR)

Article 29 (2) of Universal Declaration of Human Rights states that

“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due recognition and respect for
the rights and freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society.” 41

The Education regulation of Private and minority run institutions should not bring about inequality for
the non-minority sects. Reasonable restrictions can be imposed on them for
__________________________________________________________________________________
39
Supra 25
40
Supra 13
41
Clause(2) of Art. 29 of Universal Declaration of Human Rights

MEMORIAL ON BEHALF OF THE RESPONDENT

F. University Grants Commission (UGC)

The University Grants Commission is a statutory organization established by an

Act of Parliament in 1956 under Ministry of Human Resource Development, for the
coordination, determination and maintenance of standards of university education. Apart
from providing grants to eligible universities and colleges, the Commission also advises the
Central and State Governments on the measures which are necessary for the development of
Higher Education.

“The consistent and settled view of this Court, therefore, is that in spite of incorporation of
Universities as a legislative head being in the State List, the whole gamut of the University
which will include teaching, quality of education being imparted, curriculum, standard of
examination and evaluation and also research activity being carried on will not come within
the purview of the State legislature on account of a specific Entry on co- ordination and
determination of standards in institutions for higher education or research and scientific and
technical education being in the Union List for which the Parliament alone is competent. It is
the responsibility of the Parliament to ensure that proper standards are maintained in
institutions for higher education or research throughout the country and also uniformity in
standards is maintained” 42

The case of private universities in Chhattisgarh opened up a gamut of issues on the operation
of these universities. As a follow-up to regulating and monitoring the standards of these
institutions, a series of steps were adopted by the UGC (under the UGC Act 1956). The
guidelines were set primarily under the UGC (Establishment of and Maintenance of
Standards in Private Universities) Regulation, 2003.

The UGC regulation 2003 notes that

1. “Each private university shall be established by a separate State Act and shall conform to
the relevant provisions of the UGC Act, 1956, as amended from time to time.”

2. “A Private university shall fulfill the minimum criteria in terms of programmes, faculty,
infrastructural facilities, financial viability, etc., as laid down from time to time by the
UGC and other concerned statutory bodies such as the All India Council for Technical
Education (AICTE), the Bar Council of India (BCI), the Distance Education Council
(DEC), the Dental Council of India (DCI),the Indian Nursing Council (INC), the Medical
Council of India (MCI), the National Council for Teacher Education (NCTE), the
Pharmacy Council of India (PCI), etc”43

Each of these universities are formed through Separate Acts or a general guideline that is
enacted by the state. For instance, take the case of Uttar Pradesh. Uttar Pradesh has 21 private
universities registered under separate acts
___________________________________________________________________________
42
Prof. Yashpal & Anr vs State Of Chhattisgarh & Ors on 11 February, 2005 supreme court
43
https://www.ugc.ac.in/oldpdf/regulations/establishment_maintenance.pdf

MEMORIAL ON BEHALF OF THE RESPONDENT

The intent is to promote private universities the State has to ensure a level playing field for
the competent parties. When the sector is opened up, the objective shall be to improve the
quality of the education, up gradation of the courses on timely basis and availability and
accessibility to the higher education avenues.
Each state Government has to and is compelled to frame the rules for the sector.

RECRUITMENT OF TEACHERS
There are certain Norms and Standards for Teachers in the academic qualifications laid down
by the University Grants Commission for appointment of teachers for teaching students of
higher education. The required academic background and qualifications are necessary to
impart their related study to the ones who seek the same. Teachers mould the students and
it is necessary that they have the required qualifications, skills, knowledge and abilities.

It is the duty of the state to make laws pertaining to the Directive Principles of State Policy
so as to improve the socio-economic conditions of the country and Education plays a huge
part in this aspect. None of the fundamental rights have been infringed being subject to
reasonable restrictions.
Therefore it is most humbly and respectfully submitted before this Hon’ble Court that the
adequate law does not violate or infringe the Fundamental rights of the Petitioners.

MEMORIAL ON BEHALF OF THE RESPONDENT

 PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly prayed before this Hon’ble Court that this Hon’ble Court may be pleased to
hold, adjudge and declare that,

The petition shall be dismissed on the ground that no Fundamental rights have
been infringed.

And/or

pass any other order that this court may deem fit in the interest of justice, equity and good
conscience.

All of which is most humbly submitted by the counsel for the Respondent.

Counsel for the Respondent

Sd/-

MEMORIAL ON BEHALF OF THE RESPONDENT

 WEBLIOGRAPHY

 http://www.thelawdictionary.com

 http://www.manupatra.in

 http://www.IndianKanoon.org.

 https://indiankanoon.org/doc/161666/

 https://indiankanoon.org/doc/367586/

 https://indiankanoon.org/doc/703393/

MEMORIAL ON BEHALF OF THE RESPONDENT