T.M.A. Pai Foundation v. State of Karnataka
AIR 2003 SC 355: (2002) 8 SCC 481: JT 2002 (9) SC 1: 2003 (1) Kant LJ 1
Judges: B.N. Kirpal, C.J. and G.B. Pattanaik, V.N. Khare, S. Rajendra Babu, S.S.M. Quadri, Ruma Paul, S.N. Variava, K.G. Balakrishnan, P.V. Reddi, Ashok Bhan and Arijit Pasayat, JJ.
Date of Decision: 31-10-2002/25-11-2002
This case was brought before the Supreme Court by some private educational institutions. Their grievance was that the unnecessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. They contended that the Government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own self-importance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others have filed the writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
On behalf of all these institutions it was submitted that the Constitution provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right was stated to be contained in article 19(1)(g) and/or article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by article 30. It was further their case that private educational institutions should have full autonomy in their administration. On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the Constitution the provisions of the Constitution should be interpreted so that the right of the private non-minority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions.
Autonomy of private educational institutions, both aided and unaided, established by minorities as well as non-minorities.
The Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minority which would enable them to establish and administer educational institutions in manner so as to be in conflict with the other Parts of the Constitution. The Supreme Court in some previous cases has held that the right to administer does not include the right to mal-administer. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also — for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
Under article 30(1) religious and linguistic minorities have been put at par. Therefore, the unit for determining a linguistic minority would be the same in relation to a religious minority.
As a result of the insertion of Entry 25 into List III, the Parliament may, with respect to a particular State or group of States, legislate in relation to education. Language being the basis for the establishment of different States for the purposes of article 30 a “linguistic minority” will have to be determined in relation to the State in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put at par in article 30. The right under article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever.
Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, article 30(1) ensures protection to the linguistic and religious minorities institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has are also curtailed by article 28(1) and 28(3). A minority educational institution has a right to impart religious instruction but this right is taken away by article 28(1) if that minority institution is maintained wholly out of State funds. Similarly on receiving aid out of State funds or on being recognized by the State, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of State funds as provided by article 28 is valid, there is no reason why article 29(2) should not be held to be applicable. There is nothing in the language of articles 28(1) and (3), article 29(2) and article 30 to suggest that on receiving aid, article 28(1) and (3) will apply, but article 29(1) will not. Therefore, the institutions covered by article 30 are not outside the injunction of article 29(2).
Although the right to administer includes within it a right to grant admission to students of their choice under article 30(1), when such a minority institution is granted the facility of receiving grant-in-aid, article 29(2) would apply and necessarily, therefore, one of the rights of administration of the minorities would be eroded to some extent. Article 30(2) is an injunction against the State not to discriminate against the minority educational institution and prevent it from receiving aid on the ground that the institution is under the management of a minority. While, therefore, a minority educational institution receiving grant-in-aid would not be completely outside the discipline of article 29(2) of the Constitution, by no stretch of imagination can the rights guaranteed under article 30(1) be annihilated.
However, even if it is possible to fill up all the seats with students of the minority group, the moment a minority institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under article 29(2) are not subverted. It is for this reason that a variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantee enshrined in both article 29(2) and article 30.
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. The aided linguistic minority educational institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the State in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that State is concerned.
Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instill in them a sense of security and confidence, even though the minorities cannot be per se regarded as weaker sections or underprivileged segments of the society.
Each of the people of India has an important place in the formation of the nation. Each piece has to retain its own colour. By itself, it may be an insignificant stone, but when placed in a proper manner, goes into the making of a full picture of India in all its different colours and hues. The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.
Religious and linguistic minorities, who have been put at par in article 30, have to be considered State-wise. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit.
The use of the words “of their choice” in article 30(1) indicates that even professional educational institutions would be covered by article 30.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under article 30(1) are not substantially impaired and further the citizens rights under article 29(2) are not infringed.
The State or other controlling authorities can prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.