Four of the five judges comprising the Constitution bench have left it open for private unaided institutions to challenge the government’s OBC reservation law. Stating that none of these institutes had approached the court against the Central Education Institutions Bill, 2006, the judges refused to pass any judgment on whether the law applies to the private unaided institutes or not.
Justice Dalveer Bhandari, however, dealt with the aspect “in larger public interest”. According to him, maximum autonomy should be given to the management of unaided private institutions. “They may admit students of their choice, subject to an objective and rational procedure of selection. They might admit a small percentage of students belonging to the weaker section of the society by granting those sections freeships or scholarships, if not granted by the Government.”
Referring to an earlier judgment of Supreme Court (popularly known as T.M.A. Pai), he said given a transparent and reasonable selection process, it is up to the institution to define “merit”, according to its own values. Justice Bhandari added that court distinguishes between reasonable and unreasonable regulations by asking which functions lie at the heart of an institution's autonomy.
“Regulations that strike at the core of autonomy are unreasonable. For example, prescribing minimum qualifications for teachers is a reasonable regulation, actually selecting the teachers is not.”
He excluded aided private institutes from the ambit of his judgment and said those who refuse government money should be allowed individual liberty and freedom.
Reservations, he opined, weakened the incentive to establish unaided institutions. “If the State usurps the right to select students, would one still spend the time and money to establish an unaided institution."