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27. The learned Senior Counsel, Mr. Jaideep Gupta contended that the right to set up educational institutions, whether minority or non-minority, pursuant to sub-clause (g) of clause (1) of Article 19, includes the right to admit students of their choice from a "source" within the general pool, so long as the procedure adopted is transparent, fair and non-exploitative. As far as merit is concerned, it would then be that so long as inter se merit within that "source" is concerned, the State ought not to have the power to insist that as far as non-minority educational institutions only select students from the entire general pool on the basis of marks secured on the common entrance test. He also contended that the admission policy of ACMS, in choosing to admit eligible wards of Army personnel in all of its seats, is an instance of selecting a "source" and not a reservation at all. To this extent he also submitted that where a particular class is a source of admission, the principles relating to reservations would not apply to the same where, the class itself is well defined and rational. The learned Senior Counsel, Mr. Jaideep Gupta submitted that this Court in P.A. Inamdar, interpreting TMA Pai, has held that the essential ingredients of freedom of management of private non-minority unaided educational institutions include the right to admit students and recruit staff, and determine the quantum of fee to be charged, and that they cannot be regulated, either with respect to minority or non-minority educational institutions. In  addition he also submitted that Clause (5) of Article 15, inserted by the 93rd Constitutional (Amendment) Act, 2005, in so far that it enables special provisions by the State with respect to admission of Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes in private non-minority unaided institutions, would be unconstitutional and violative of the basic structure of the Constitution. In particular he relied on the sole opinion of Bhandari J., in Ashoka Kumar Thakur v. Union of India8 that enabling provisions of clause (5) of Article 15, in so far as they relate to private non-minority unaided educational institutions, to be violative of basic structure of the Constitution, and argued that we adopt the same rationale and conclusions.

80. Further, it was also stated in, in para 102, that in evaluating the permissibility of an amendment, one needs to look at, as done in Waman Rao v. Union of India,22 how far the amendment is "consistent with the original; you cannot by an amendment transform the original into the opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law." In other places, as in para 105, it is noted that "Economic growth and social equity are two pillars of our Constitution, which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc., As held in Nagaraj23 egalitarian equality exists in Article 14 read with Articles 16(4), (4-A), (4-B) and, therefore, its wrong to suggest that equity and justice finds place only in the directive principles." (emph. supp'd). Upon discussing various aspects such as the fact that extensive discussions were held in Keshavananda with respect to status of property as a fundamental 22 (1981) 2 SCC 362 23 M. Nagaraj v Union of India (2006)8 SCC 202  right, that in the Indira Gandhi case Chandrachud, J., posits that equality embodied in Article 14 is part of the basic structure of the Constitution, that in Minerva Mills it was held that Articles 14, 19 and 21 clearly form part of the basic structure of the Constitution and cannot be abrogated, it is concluded in para 114 that "the result of the aforesaid discussion is that since basic structure of the constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any fundamental rights, or any other aspect of the basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have has to be examined in each case." (emph. supp.)

87. The modality of the "essences of rights test" was enunciated in para 25 of M. Nagaraj as follows: " In order to qualify as an essential feature, it must be first established that the said principle is a part of constitutional law binding on the legislature. Only, thereafter, is the second step to be taken, namely whether, whether the principle is so fundamental as to bind even the amending power of Parliament i.e., to form a part of the basic structure..... To sum up: in order to qualify as an essential feature, a principle is to be first established as part of constitutional law and as such binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending powers of Parliament i.e., to form part of the basic structure of the Constitution. This is the standard of review of constitutional amendments in the context of the doctrine of the basic structure." And further on, in para 26, the Court also recognized that the doctrine of basic structure has emanated from the German Constitution and notes that in that jurisprudence the overarching principle that connects, and informs all other values is the principle of human dignity. With respect to our Constitution it was noted that "axioms like secularism, democracy, reasonableness, social justice, etc., are over-arching principles which provide linking factor for the principle of fundamental rights like  Article 14, 19 and 21. These principles" i.e., the over-arching principles, "are beyond the amending power of Parliament." (emph. suppd.)

97. If indeed one essential activity of the many essential ones that form the freedom to engage in one of the occupations of the many occupations that are a part of the many freedoms guaranteed by the Constitution,  conflicts with an amendment that intends to strengthen the process of achievement of one of the main navigational tools and thereby the goals of the nation-state itself, should such an amendment be declared to be unconstitutional and against the basic structure? Shouldn't one also look at the damage that such a declaration can cause to many of the other basic features of the Constitution, and also the loss of diverse strengths that such an amendment is likely to impart to many other essential or basic features of our Constitution? We opine that by not undertaking an assessment of such factors we would almost certainly lead to erroneous judgments that would destroy the basic structure of the Constitution. In the present context what is involved is a judicial review of an amendment to the Constitution that seeks to strengthen the egalitarian aspects of our social order. Consequently, the conflict, in the instant case, has to be evaluated in terms of whether disallowing the amendment might damage, significantly, the prospects of promoting intrinsic and inherent parts of our equality code - the egalitarian and social justice components - that are essential elements of our basic structure. Such a test would give us a more nuanced appreciation of how setting aside, as violative of the basic structure, the provisions of clause (5) of Article 15 with respect to admissions to non-minority unaided educational institutions, would impact our Constitution, as a fundamental instrument in country's governance.