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Islamic Academy vs State of Karnatka, 2003 Supreme Court Case

Author: RxPG News, Posted on Wednesday, April 14 @ 13:20:54 IST by RxPG  

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Karnatka PG

CASE NO.:
Writ Petition (civil) 350 of 1993

PETITIONER:
Islamic Academy of Edn. & Anr.

RESPONDENT:
Vs.

State of Karnataka & Ors. .
DATE OF JUDGMENT: 14/08/2003

BENCH:
S.B. SINHA

JUDGMENT:


J U D G M E N T



with SLP(C) Nos. 11286, 11391, 11189-

11195/2003, W.P.(C) Nos. 355/1993, 174/2003,

T.P.(C) Nos. 286-288/2003, SLP(C) Nos. 3465-

3466, 3942-3943, 4002-4003, 9253-9254,

10561/2003, W.P.(C)No. 261, 275, 280 & 289/2003



S.B. SINHA, J :



INTRODUCTORY REMARKS :



Imparting of education is a State function. The State, however,

having regard to its financial and other constraints is not always in a

position to perform its duties. The function of imparting education

has been, to a large extent, taken over by the citizens themselves.

Some do it as pure charity; some do it for protection of their minority

rights whether based on religion or language; and some do it by way of

their "occupation". Some such institutions are aided by the State and

some are unaided.



Privately managed educational institutions imparting professional

education in the fields of medicine, dentistry and engineering have

spurted in the last few decades. The right of the minorities to

establish an institution of their own choice in terms of clause (1) of

Article 30 of the Constitution of India is recognized; so is the right

of a citizen who intends to establish an institution under Article

19(1)(g) thereof. However, the fundamental right of a citizen to

establish an educational institution and in particular a professional

institution is not absolute. These rights are subject to regulations

and laws imposing reasonable restrictions. Such reasonable

restrictions in public interest can be imposed under clause (6) of

Article 19 and regulations under Article 30 of the Constitution of

India. The right to establish an educational institution, although

guaranteed under the Constitution, recognition or affiliation is not.

Recognition or affiliation of professional institutions must be in

terms of the statute.



Entry 66 of List I and Entry 25 of List III of the Seventh

Schedule of the Constitution of India provide for legislative field in

this behalf. Various States have enacted laws for regulating admission

and prohibiting charging of capitation fee. The said legislations also

provide for employment of teachers, their conditions of service,

discipline in institution and several other matters. Such regulatory

measures have been the subject matter of various decisions of this

Court.



BACKGROUND :



This Court in Unni Krishnan J.P.and Others vs. State of Andhra

Pradesh and Others [(1993) 1 SCC 645] laid down a Scheme. In terms of

the said Scheme the self-financed institutions were entitled to admit

50% of students of their choice, whereas rest of the seats were to be

filled in by the State. For admission of students, a common entrance

test was to be held. Provisions for free seats and payment seats were

made therein. The State and various statutory authorities including

the Medical Council of India, University Grants Commission and All

India Council for Technical Education made and/or amended regulations

so as to bring them at par with the said Scheme.



The Islamic Academy of Education filed a writ petition in the

year 1993 questioning the validity thereof. The said writ petition

along with connected matters were placed before a Bench of five Judges,

which was prima facie of the view that Article 30 of the Constitution

of India did not clothe minority educational institutions with the

power to adopt its own method of selecting students.



This Court in T.M.A. Pai Foundation and Others Vs. State of

Karnataka and Others [(2002) 8 SCC 481] noticed the same stating :



"The hearing of these cases has had a chequered

history. Writ Petition No. 350 of 1993 filed by

the Islamic Academy of Education and connected

petitions were placed before a Bench of 5

Judges. As the Bench was prima facie of the

opinion that Article 30 did not clothe a

minority educational institution with the power

to adopt its own method of selection and the

correctness of the decision of this Court in

St. Stephen's College v. University of Delhi

[(1992) 1 SCC 558] was doubted, it was directed

that the questions that arose should be

authoritatively answered by a larger Bench.

These cases were then placed before a Bench of

7 Judges. The questions framed were recast and

on 6th February, 1997, the Court directed that

the matter be placed a Bench of at least 11

Judges, as it was felt that in view of the

Forty-Second Amendment to the Constitution,

whereby "education" had been included in Entry

25 of List III of the Seventh Schedule, the

question of who would be regarded as a

"minority" was required to be considered

because the earlier case laws related to the

pre-amendment era, when education was only in

the State List. When the cases came up for

hearing before an eleven Judge Bench, during

the course of hearing on 19th March, 1997, the

following order was passed:-

"Since a doubt has arisen during the

course of our arguments as to whether

this Bench would feel itself bound by the

ratio propounded in -- In Re Kerala

Education Bill, 1957 (1959 SCR 955) and

the Ahmedabad St. Xavier's College

Society v. State of Gujarat, 1975(1) SCR

173, it is clarified that this sized

Bench would not feel itself inhibited by

the views expressed in those cases since

the present endeavour is to discern the

true scope and interpretation of Article

30(1) of the Constitution, which being

the dominant question would require

examination in its pristine purity. The

factum is recorded."

The eleven Judge Bench answered various questions raised therein.

The petitioners/applicants before us are private unaided

institutions. Most of them have been established by a Society, Trust

or persons belonging to the minority community based on religion or

language.



By reason of the impugned legislations/ Government orders, the

State Governments, inter alia, while seeking to lay down the government

quota in relation to such unaided institutions, directed that while

filling up the same, the self-financed institutions must follow the

merit list prepared by the State on the basis of External Common

Entrance Test (CET). The State Governments also fixed/regulated fees

to be charged from the students by such institutions.

Validity or otherwise of the said rules/regulations/ Governmental

Orders came up for consideration before several High Courts. Different

High Courts in their Orders while granting interim reliefs, construed

the judgment of this Court in T.M.A. Pai Foundation (supra)

differently. The perceptions of the States as also the High Courts in

reading the judgment are widely varied. In the aforementioned

situation, several applications have been filed in the matters which

were disposed of by the 11-Judge Bench of this Court. Some

institutions as also the State of Kerala had also filed Special Leave

Petitions against the interim orders passed by the High Courts. Some

writ petitions under Article 32 of the Constitution of India have also

been filed. Keeping in view the importance of the question, this Court

issued notices to all the State Governments.

In the Special Leave Petitions and the Writ Petitions several

other questions have also been raised but as at present advised this

Bench intends to confine itself to the interpretation of judgment of

this Court in T.M.A. Pai Foundation (supra) leaving other questions

open for consideration by the appropriate benches.

In these matters this Court is not at all concerned with the

rights of the aided minority and non-minority institutions and

restrictions imposed by the States upon them but we are concerned only

with the rights and obligations of private unaided institutions run by

the minorities and non-minorities.

SUBMISSIONS MADE ON BEHALF OF WRIT PETITIONERS - APPLICANTS:



It was urged that while interpreting the judgment, this Court

should bear in mind the salient aspects of the findings in T.M.A. Pai

(supra) that is to say :

I ON THE FUNDAMENTAL RIGHTS OF EDUCATIONAL INSTITUTIONS:



(i) Citizens have a fundamental right to establish and administer

educational institutions under Article 19(1)(g), 21, 26 and 30 of

the Constitution (Paras 25 & 26) and, thus, the said rights

cannot be taken away/ restricted.

(ii) Such a fundamental right extends to education at all levels

including professional education. (Para 161)

(iii) The right to establish and administer educational institutions

comprises of the right to

(a) admit students

(b) set up a reasonable fee structure

(c) constitute a governing body

(d) appoint staff and take disciplinary action (Para 50)

(iv) Although such rights are subject to reasonable restrictions, but

the same must be for the betterment of the institution and as

such the right under Article 19(1)(g) and Article 30 cannot be

undermined. (Paras 135-138)

(v) Restrictions can be imposed only at the time of grant of

recognition or affiliation of the institutions and not

thereafter.

(vi) The right of the citizens vis--vis the minority communities must

be judged keeping in view the distinction between

(a) unaided and aided institutions

(b) minority and non-minority institutions (Paras 46-73);

II ON THE DEGREE OF CONTROL

It was contended that although some amount of regulation/ control

is permissible but the validity thereof is required to be considered:

(i) In the light of the decision of this Court that the Scheme

framed in Unnikrishnan has been abolished and consequent

directions issued on the basis thereof by the UGC, AICTE, MCI,

Central and State Governments etc. have been held to be

invalid. (Para 45)

(ii) While exercising the power of control, it is impermissible to

nationalize education particularly with regard to the right of

minorities to admit members of their own community as also

fixing the fee. (Para 38) Minority institutions are not to

subsidize the State nor any principle of cross-subsidy can be

deciphered therefrom.

(iii) In the case of unaided institutions, maximum autonomy has to

be conceded as contradistinguished from the power of the State

to exercise more control over unaided institutions but even in

relation thereto, aided institutions should not be treated to

be wholly owned or controlled by the State or their

Departments. (Paras 55, 61, 62 & 72)

(iv) Such a right of control over the aided institutions inheres

for the purpose of oversight and restraints so as to

(a) ensure proper utilization of funds (Para 143)

(b) permit the Government to have some seats to the

extent of its reservation policy (Paras 42-44).

(v) Although the aided institutions are subject to clause (2) of

Article 29 and clause (3) of Article 28 of the Constitution,

but the unaided minority institutions being not so subject

would not be bound by the restraints emanating therefrom so

long they exercise their right to admit and select students in

a transparent and non-arbitrary manner;

III ON ADMISSION OF STUDENTS BY UNAIDED INSTITUTIONS



(i) Unaided institutions have an unbridled right on admission of

students, comprising of devising a test for selecting students of

their choice (Para 36, 40-41, 50). Such a right emanates from

the principle that every private and public owner of an

institution has the power to admit qualified students of their

own choice (Para 42-44).

(ii) As such a right also emanates with a view to maintain the

atmosphere and traditions of the private educational

institutions, the general principles for unaided institutions

would also apply to unaided professional institutions. The right

of option either to select their candidates from the Government

CET test or its own test is absolute and the ultimate decision in

this behalf rests with the institutions whereas aided

institutions can be compelled to follow the CET test devised by

the Government or the University.

(iii) Whereas such a test and devising a system on the part of the

unaided institutions cannot be based on fancy and whims but once

"some identifiable or reasonable methodology" usually on merit is

adopted, the right to select qualified students on a fair and

discernable basis cannot be interfered with (Para 65).



IV ON THE NATURE AND EXTENT OF THE GOVERNMENT QUOTA FOR UNAIDED

INSTITUTIONS



(i) It is contended that the Government cannot have a quota in this

regard as the institutions are unaided. Having regard to the

fact that if such government quota is allowed, the same would

destroy not only the concept of unaided institutions but right to

exercise maximum autonomy especially in the matter of selection

of students and fees would be impaired.

(ii) Such a right must be construed having regard to the extent of

control over the aided institution.

(iii) Admission to a small percentage for weaker sections which the

unaided institutions are required to follow by way of implication

rules out enforcement of any reservation policy of the State as

the same would run counter to the decision of this Court in The

Ahmedabad St. Xavier's College Society and Another Vs. State of

Gujarat and Another [(1974) 1 SCC 717].

(iv) In any event, the direction to determine a small percentage of

persons drawn from the weaker sections of the society should be

left with the management, which would include the weaker sections

of the minority community for which such institution has been

established.

(v) It is for an unaided institution to volunteer to provide

scholarship or freeship to the students of weaker sections so

long they are meritorious students (Para 37, 53, 61 & 68)

(vi) Since weaker sections form a special category, they cannot be

selected either on the basis of :

(a) reservation policy of the State

(b) regional affiliation or residence within the State

(c) religion.

(vii) For the said purpose also, the social and educational

backwardness of the area or the regions entitling such inclusion

on the touchstone of compelling necessities of the State will

have to be taken into consideration.

(viii) In any event, reservation for weaker sections cannot be greater

than 50% of the total in any batch after taking into account the

reservation for SC, ST and OBC.

(ix) The unaided institutions cannot be subject to onerous financial

impositions nor can they be asked to perform the functions of the

State. (Para 61)

(x) In any event, the quota policy cannot be imposed on unaided

institutions to the extent of laying down standards of a

reasonable nature that do not cut down its operational autonomy

and financial independence. (Paras 36, 40, 43, 53, 59, 65).



V. FEE FIXATION FOR UNAIDED INSTITUTIONS

As unaided institutions are to be given maximum autonomy in the

matter of fixation of fee, there cannot be :

(a) a rigid fee structure (para 54)

(b) Such fees are to be fixed by the unaided institutions (Para

56, 57).

(c) The only impediment in this behalf is that no capitation

fee can be charged nor the institutions can take recourse

to profiteering since education is charitable in nature.

Therefore a reasonable revenue surplus for the purpose of

development of education and expansion of education would

be permissible (Para 57). While restricting charging the

capitation fee and profiteering, this Court had merely

directed that such institutions make no undue, excessive or

illegal profits and thereby a reasonable profit is

permitted.

(d) Only because fee is to be charged on a reasonable

development profit basis, the same would not result in

decline in standard or amount to capitation. (Para 61).

(e) Students of weaker sections when admitted may be granted

freeships and scholarships (Para 53).

(f) For the purpose of finding out as to who would be the

students belonging to the weaker sections of the community,

local needs and other needs must be taken into

consideration.



The judgment of this Court in T.M.A. Pai Foundation (supra) is to

be construed having regard to the following principles:

(a) Its ratio must be found in the answers ultimately given.

(b) A judgment has to be read as a whole and in such a manner

so that all parts of a judgment dealing with a particular

point are provided with a meaning. The regulations

imposing restrictions must be read in such a fashion so

that maximum autonomy of the unaided institutions are

preserved and respected.

SUBMISSIONS MADE ON BEHALF OF STATES/CENTRAL GOVERNMENT/STATUTORY

AUTHORITIES

(i) The right of citizens including the minority communities

whether based on any religion or language contained in Article

19(1)(g) and Article 30(1) is not absolute but is subject to

reasonable restrictions.

(ii) Regulations restricting the right of minority to admission of

students are necessary for maintenance of proper academic

standards, atmosphere and infrastructure (including qualified

staff) and for prevention of mal-administration (Para 54).

(iii) Since education in a sense is regarded as charitable, unaided

institutions cannot charge a hefty fee which would not be

required for the purpose of fulfilling the object for which

the institutions are established nor by reason thereof they

can take recourse to profiteering (Para 57.)

(iv) As merit is usually determined by either the marks of the

students obtained at the qualifying examination or school

leaving certificate stage followed by the interview or by a

common entrance test conducted by the institution, the State

while framing regulation has the requisite jurisdiction to

issue necessary directions in this behalf so that merit is not

sacrificed (Para 58-59).

(v) The plea of the minority institutions to the effect that their

right to admit or reject students is absolute would not be in

consonance with the direction issued in para 68 which provides

for

(a) a system to provide merit based selection while granting

sufficient discretion to the management

(b) As certain percentage of seats have to be reserved for

the management, the rest can be filled up on the basis

of counseling by the State agencies which would take

care of poorer and backward sections of the society.

The prescription of the percentage for the said purpose

must be left with the State (Para 68).

(vi) Professional institutions must apply a more rigorous test,

which would be subject to greater regulation by the State or

by the University. (Answer to Question No. 4).

(vii) As the State while granting essentiality certificate is to

consider the local needs and further guarantee smooth

functioning of such institutions failing which the State has

to adjust the students of the institutions to their own

institutions, it has a great stake in the matter. Choice and

selection of students in professional courses are directly

linked with maintaining the standards of medical education.

(viii) If a free hand is given to all the private medical, dental,

engineering and other professional colleges to hold their own

test, having regard to the time schedule framed by this Court

for holding examinations in the 15% All India quota as also

the All India test held by AIIMS, CBSE, JIPMER, AFMC etc. the

students would be deprived from appearing at the examinations

if tests are held throughout the country and they will have to

incur huge expenditure for purchasing application forms which

are priced at Rs. 500 to Rs. 1000/- as also by way of

travelling, boarding and lodging so as to enable them to

appear at various examinations. More than one examination may

be held on the same day or in such near proximity that

traveling from one place to another would become virtually

impossible. The methodology, thus, must be adopted so as to

minimize the inconvenience caused to a majority of the

students so that they can appear at many examinations by

incurring a reasonable expenditure.

(ix) It is a common knowledge that although not termed as

capitation fee a large number of unaided institutions are

selling their seats, which must not be allowed to continue,

and must be curbed with heavy hands.

(x) In pursuit of its objective of State Policy having regard to

Articles 38, 41 & 46 which are in terms of Article 37 thereof,

which are fundamental in governance of the country it is

necessary to provide for a common examination so that the

rights of the inter se minorities and inter se weaker sections

can be taken care of in terms of para 68 of the judgment.

(xi) The directions issued by this Court to unaided professional

institutions contained in paras 67 and 68 only are to be given

effect to although the Bench referred to professional colleges

also in paras 58 and 59 of the judgment.



OVERVIEW OF THE JUDGMENT IN T.M.A. PAI FOUNDATION :

The right to establish an institution is provided for in Article

19(1)(g) of the Constitution of India. Such a right, however, is

subject to reasonable restrictions, which may be brought about in terms

of Clause (6) thereof.

Minorities whether based on religion or language, however, have a

fundamental right to establish and administer educational institutions

of their own choice. The right under clause (1) of Article 30 is not

absolute; and subject to reasonable regulations while inter alia may

be framed having regard to the public interest and national interest

of the country. Regulations can also be framed to prevent

maladministration as also for laying down the standard of education,

teaching, maintenance of discipline, public order, health, morality,

etc.

UNNI KRISHNANAN, J.P.



This Court in Unni Krishnan (supra) while framing the scheme

directed :

(a) that a professional college should be established and/or

administered only by a Society registered under the

Societies Registration Act, 1860, or the corresponding

Act of a State, or by a Public Trust registered under

the Trusts Act, or under the Wakfs Act, and that no

individual, firm, company or other body of individuals

would be permitted to establish and/or administer a

professional college.

(b) that 50% of the seats in every professional college

should be filled by the nominees of the Government or

University, selected on the basis of merit determined by

a common entrance examination, which will be referred to

as "free seats"; the remaining 50% seats ("payment

seats") should be filled by those candidates who pay the

fee prescribed therefor, and the allotment of students

against payment seats should be done on the basis of

inter se merit determined on the same basis as in the

case of free seats.

(c) that there should be no quota reserved for the

management or for any family, caste or community, which

may have established such a college.

(d) that it should be open to the professional college to

provide for reservation of seats for constitutionally

permissible classes with the approval of the affiliating

university.

(e) that the fee chargeable in each professional college

should be subject to such a ceiling as may be prescribed

by the appropriate authority or by a competent court.

(f) that every State government should constitute a

committee to fix the ceiling on the fees chargeable by a

professional college or class of professional colleges,

as the case may be. This committee should, after hearing

the professional colleges, fix the fee once every three

years or at such longer intervals, as it may think

appropriate.

(g) that it would be appropriate for the University Grants

Commission to frame regulations under its Act regulating

the fees that the affiliated colleges operating on a no

grant-in-aid basis were entitled to charge. The AICTE,

the Indian Medical Council and the Central Government

were also given similar advice. The manner in which the

seats to be filled on the basis of the common entrance

test was also indicated.



In T.M.A. Pai Foundation (supra) the Scheme framed by this Court

restricting the right of the citizen to establish private unaided

institutions including minority institutions and manage the same was

held to be unconstitutional stating : (1) The Scheme enforced by the

State Governments in relation to privately managed institutions would

not be a reasonable restriction within the meaning of Article 19(6) of

the Constitution of India as it resulted into revenue shortfalls making

it difficult for the educational institutions; (2) the provision made

for free seats and payment seats amounted to subsidising education of

one segment of society at the cost of other which was unreasonable

having regard to the fact that higher education has been held not to be

a fundamental right.

All orders and directions issued by the State pursuant to or in

furtherance of the directions in Unnikrishnan are, thus, also

unconstitutional.



ST. STEPHEN'S COLLEGE :

The right of a minority educational institution to adopt its own

method of selection is subject to the restrictions contained in clause

(2) of Article 29 of the Constitution of India, if the institution is

an aided one. It was held that allowing minority educational

institutions to select its own method of selection for admission of

students to the extent of 50% of the seats would not impinge upon the

right under Article 30 of the Constitution of India. It was further

held that regulations can be imposed by the State for intake of

minority categories with regard to need of the minority in the area

which the institution intends to serve.

A question, however, arose therein as to whether the State could

impose regulatory measures on the institutions run by the minority

community which provides for admission by conducting interviews but not

solely on the marks obtained in the qualifying examination? In that

case, the State had imposed restrictions on the college management

compelling it to make admission exclusively on the basis of marks

obtained in the qualifying examination. But the management, in

addition to the marks obtained by the students, also conducted

interviews for making admission to the college. This Court observed

that the denial of power to St. Stephen's College to conduct interviews

to select candidates for admission would be violative of the rights of

the minority community guaranteed under Article 30(1) of the

Constitution. It was held that, any regulatory measure imposed by the

State on the minority institutions should be beneficial to the

institution or for the betterment of those who join such institutions.

In T.M.A. Pai Foundation (supra) while upholding the judgment in

St. Stephen (supra), that part of the direction whereby the right of

the minority institutions were confined to 50% of the seats was held to

be bad.

From the above decisions of this Court, it is evident that though

the right engrafted under Article 30(1) of the Constitution does not

lay down any limitations or restrictions upon the right of a minority

to administer its educational institutions, yet the right cannot be

used absolutely and unreasonably.



QUESTIONS POSED IN T.M.A. PAI FOUNDATION :

In T.M.A. Pai Foundation (supra), the Bench framed the following

questions:

1. What is the meaning and content of the expression

"minorities" in Article 30 of the Constitution of India?

2. What is meant by the expression "religion" in Article

30(1)? Can the followers of a sect or denomination of a

particular religion claim protection under Article 30(1) on

the basis that they constitute a minority in the State,

even though the followers of that religion are in majority

in that State?

3. (a) What are the indicia for treating an educational

institution as a minority education institution? Would an

institution be regarded as a minority educational

institution because it was established by a person(s)

belonging to a religious or linguistic minority or its

being administered by a person(s) belonging to a religious

or linguistic minority?

(b) To what extent can professional education be treated as

a matter coming under minorities' rights under Article 30?

4. Whether the admission of students to minority

educational institution, whether aided or unaided, can be

regulated by the State Government or by the university to

which the institution is affiliated?

5. (a) Whether the minorities' rights to establish and

administer educational institutions of their choice will

include the procedure and method of admission and selection

of students?

(b) Whether the minority institutions' right of admission

of students and to lay down procedure and method of

admission, if any, would be affected in any way by the

receipt of State aid?

(c) Whether the statutory provisions which regulate the

facets of administration like control over educational

agencies, control over governing bodies, conditions of

affiliation including recognition/ withdrawal thereof, and

appointment of staff, employees, teachers and principals

including their service conditions and regulation of fees,

etc. would interfere with the right of administration of

minorities?

6. (a) Where can a minority institution be operationally

located? Where a religious or linguistic minority in State

'A' establishes an educational institution in the said

State, can such educational institution grant preferential

admission/ reservations and other benefits to members of

the religious/linguistic group from other States where they

are non-minorities?

(b) Whether it would be correct to say that only the

members of that minority residing in State 'A' will be

treated as the members of the minority vis--vis such

institution?

7. Whether the member of a linguistic non-minority in one

State can establish a trust/society in another State and

claim minority status in that State?

8. Whether the ratio laid down by this Court in St.

Stephen's case (St. Stephen's College v. University of

Delhi) is correct? If no, what order?

9. Whether the decision of this Court in Unni Krishnan,

J.P. v. State of A. P. (except where it holds that primary

education is a fundamental right) and the scheme framed

thereunder require reconsideration/modification and if yes,

what?

10. Whether the non-minorities have the right to establish

and administer educational institution under Articles 21

and 29(1) read with Articles 14 and 15(1), in the same

manner and to the same extent as minority institutions? and

11. What is the meaning of the expressions "education" and

"educational institutions" in various provisions of the

Constitution? Is the right to establish and administer

educational institutions guaranteed under the Constitution?





The Bench did not answer 4 out of 11 questions. The Hon'ble

Chief Justice, B.N. Kirpal delivering the majority judgment considered

the questions answered by the Bench under the following headings:



1. Is there a fundamental right to set up educational

institutions and if so, under which provision?

2. Does the judgment in Unni Krishnan case require

reconsideration?

3. In case of private unaided institutions can there be

government regulations and if so to what extent?

4. In determining the existence of a religious or

linguistic minority, in relation to Article 30, what is to

be the unit, the State or country as a whole? and

5. To what extent can the rights of aided minority

institutions to administer be regulated?



We are not concerned with the subject under heading 1. The core

issues in this matter revolve around headings 2, 3 and 5

aforementioned.

We are, thus, concerned in this case with Question No. 3(b), 4,

5(a), 5(b), 5(c) and 9.



The answers to the relevant questions are in the following terms:

A.3(b) Article 30(1) gives religious and

linguistic minorities the right to establish

and administer educational institutions of

their choice. The use of the words "of their

choice" indicates that even professional

educational institutions would be covered by

Article 30.

A.4 Admission of students to unaided minority

educational institutions, viz., schools and

undergraduate colleges where the scope for

merit-based selection is practically nil,

cannot be regulated by the State or University

concerned, except for providing the

qualifications and minimum conditions of

eligibility in the interest of academic

standards.

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, therefore, 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. What would be a reasonable extent,

would vary from the types of institution, the

courses of education for which admission is

being sought and other factors like educational

needs. The State Government concerned has to

notify the percentage of the non-minority

students to be admitted in the light of the

above observations. Observance of inter se

merit amongst the applicants belonging to the

minority group could be ensured. In the case of

aided professional institutions, it can also be

stipulated that passing of the common entrance

test held by the state agency is necessary to

seek admission. As regards non-minority

students who are eligible to seek admission for

the remaining seats, admission should normally

be on the basis of the common entrance test

held by the state agency followed by

counselling wherever it exists.

A.5(a) 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 procedure adopted or selection made

should not be tantamount to mal-administration.

Even an unaided minority institution ought not

to ignore the merit of the students for

admission, while exercising its right to admit

students to the colleges aforesaid, as in that

event, the institution will fail to achieve

excellence.

A.5(b) While giving aid to professional

institutions, it would be permissible for the

authority giving aid to prescribe bye-rules or

regulations, the conditions on the basis of

which admission will be granted to different

aided colleges by virtue of merit, coupled with

the reservation policy of the state qua non-

minority students. The merit may be determined

either through a common entrance test conducted

by the University or the Government concerned

followed by counselling, or on the basis of an

entrance test conducted by individual

institutions - the method to be followed is for

the university or the government to decide. The

authority may also devise other means to ensure

that admission is granted to an aided

professional institution on the basis of merit.

In the case of such institutions, it will be

permissible for the government or the

university to provide that consideration should

be shown to the weaker sections of the society.

A.5(c) So far as the statutory provisions

regulating the facets of administration are

concerned, in case of an unaided minority

educational institution, the regulatory measure

of control should be minimal and the conditions

of recognition as well as the conditions of

affiliation to an university or board have to

be complied with, but in the matter of day-to-

day management, like the appointment of staff,

teaching and non-teaching, and administrative

control over them, the management should have

the freedom and there should not be any

external controlling agency. However, a

rational procedure for the selection of

teaching staff and for taking disciplinary

action has to be evolved by the management

itself.

For redressing the grievances of employees of

aided and unaided institutions who are

subjected to punishment or termination from

service, a mechanism will have to be evolved,

and in our opinion, appropriate tribunals could

be constituted, and till then, such tribunals

could be presided over by a Judicial Officer of

the rank of District Judge.

The State or other controlling authorities,

however, can always 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.

Regulations can be framed governing service

conditions for teaching and other staff for

whom aid is provided by the State, without

interfering with the overall administrative

control of the management over the staff.

Fees to be charged by unaided institutions

cannot be regulated but no institution should

charge capitation fee.

A.9 The scheme framed by this Court in Unni

Krishnan case and the direction to impose the

same, except where it holds that primary

education is a fundamental right, is

unconstitutional. However, the principle that

there should not be capitation fee or

profiteering is correct. Reasonable surplus to

meet cost of expansion and augmentation of

facilities does not, however, amount to

profiteering.



The conflict has to be resolved keeping the aforementioned

findings in view.



CORE QUESTIONS :

(i) Whether unaided professional institutions are entitled to lay

down their own fee structure?

(ii) Whether in view of the judgment of this Court in T.M.A. Pai

Foundation (supra) private and unaided professional

institutions are entitled to have their own admission

programme?

(iii) Whether the State Governments are entitled to lay down the

quota of total seats to be filled up by the management?



RELEVANT FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION



The right to establish and administer educational institutions

was held to be guaranteed to citizens under Article 19(1)(g) of the

Constitution of India and to the minorities under Article 30.

One of us (Chief Justice Khare) while agreeing with the majority

delivered a separate opinion relating to aided minority institutions

and non-minority institutions as also interpretation of the right of

the minorities under Clause (1) of Article 30 vis--vis clause (2) of

Article 29 and held that such right is limited by the conditions laid

down in clause (2) of Article 29 and clause (3) of Article 28.

Quadri, J. agreed with the aforementioned view stating:

"259. In regard to the minorities seeking

recognition and/or aid it was observed in

Kerala Education Bill, 1957 (AIR 1958 SC 956 :

1959 SCR 995) that the minorities cannot surely

ask for aid or recognition for an educational

institution run by them in unhealthy

surroundings, without any competent teachers,

possessing any semblance of qualification, and

which does not maintain even a fair standard of

teaching or which teaches matters subversive of

the welfare of the scholars. In such matters,

"the State can insist that in order to grant

aid the State may prescribe reasonable

regulations to ensure the excellence of the

institutions to be aided", (emphasis supplied)

Thus, it is clear that regulations postulated

for granting recognition or aid ought to be

with regard to the excellence of education and

efficiency of administration viz. to make

certain healthy surroundings for the

institutions, existence of competent teachers

possessing requisite qualifications and

maintaining fair standard of teaching. Such

regulations are not restrictions on the right

but merely deal with the aspects of proper

administration of an educational institution,

to ensure excellence of education and to avert

maladministration in minority educational

institutions and will, therefore, be

permissible. This is on the principle that when

the Constitution confers a right, any

regulation framed by the State in that behalf

should be to facilitate exercise of that right

and not to frustrate it."



Pal, J. also agreed with the said view stating:



"Similarly, the Constitution has also carved

out a further exception to Article 29(2) in the

form of Article 30(1) by recognising the rights

of special classes in the form of minorities

based on language or religion to establish and

administer educational institutions of their

choice. The right of the minorities under

Article 30(1) does not operate as

discrimination against other citizens only on

the ground of religion or language. The reason

for such classification is not only religion or

language per se but minorities based on

religion and language. Although, it is not

necessary to justify a classification made by

the Constitution, this fact of 'minorityship'

is the obvious rationale for making a

distinction, the underlying assumption being

that minorities by their very numbers are in a

politically disadvantaged situation and require

special protection at least in the field of

education.

Articles 15(4), 337 and 30 are therefore facets

of substantive equality by making special

provision for special classes on special

considerations."





One of us (Variava, J.) speaking for himself and Bhan, J. agreed

with the majority but thought it appropriate that a mechanism therefor

should be set up observing:

"So far as the statutory provisions regulating

the facets of administration are concerned, in

case of an unaided minority educational

institution, the regulatory measure of control

should be minimal and the conditions of

recognition as well as conditions of

affiliation to a University or Board have to be

complied with, but in the matter of day-to-day

Management, like appointment of staff, teaching

and non-teaching and administrative control

over them, the Management should have the

freedom and there should not be any external

controlling agency. However, a rational

procedure for selection of teaching staff and

for taking disciplinary action has to be

evolved by the Management itself. For

redressing the grievances of such employees who

are subjected to punishment or termination from

service, a mechanism will have to be evolved

and in our opinion, appropriate tribunals could

be constituted, and till then, such tribunal

could be presided over by a Judicial Officer of

the rank of District Judge. The State or other

controlling authorities, however, can always

prescribe the minimum qualifications, salaries,

experience and other conditions bearing on the

merit of an individual for being appointed as a

teacher of an educational institution.

Regulations can be framed governing service

conditions for teaching and other staff for

whom aid is provided by the State without

interfering with overall administrative control

of Management over the staff,

Government/University representative can be

associated with the selection committee and the

guidelines for selection can be laid down. In

regard to un-aided minority educational

institutions such regulations, which will

ensure a check over unfair practices and

general welfare, of teachers could be framed.

There could be appropriate mechanism to ensure

that no capitation fee is charged and

profiteering is not resorted to.

The extent of regulations will not be the same

for aided and un-aided institutions."



The majority held that there is an apparent conflict between the

provisions of clause (2) of Article 29 and clause (1) of Article 30.

Article 29 guarantees the right to every citizen not to be denied

admission into any educational institution maintained by the State or

receiving aid out of State funds on grounds only of religion, race,

caste, language or any of them; whereas clause (1) of Article 30

confers a fundamental right to set up educational institutions of their

choice.



A delicate balance was sought to be struck by stipulating that

minority educational institutions may admit non-minority students to a

"reasonable extent" so that the rights of both minorities and non-

minorities are protected. However, the extent to which such balance is

to be struck may be determined by the State having regard to such

factors as 'the type of institution', 'course of education',

'population and educational needs of minorities'. It was further laid

down that the minority institutions are required to admit students

having regard to inter-se merit amongst the applicants. Non-minorities

students, who qualify the test, would be entitled to seek admission

against the "allotted seats" as per their own respective cumulative

merit.



However, one of us Variava, J., speaking for himself and Bhan, J.

clearly held that where the minority institutions take aid from the

State they do not have any right to admit students of minority

community alone. For arriving at the said conclusion, the learned

Judge referred to the history of the said provision and the intention

of the founding fathers, which was the conferment of a right of

minorities to establish "a secular state wherein people belonging to

the different religions should all have a feeling of equality and non-

discrimination".



The learned Judge further referred to the significance of

conditional clause, 'at their own expense' in the draft article VI

which reads as follows :



"Citizens belonging to national minorities in a state

whether based on religion or language have equal

rights with other citizens in forming, controlling

and administering at their own expense, charitable,

religious and social institutions, schools and other

educational establishments with the free use of their

language and practice of their religion.



No legislation providing state-aid for schools

shall discriminate against schools under the

management of minorities whether based on religion or

language."





The learned Judge further observed that by reason of Article

30(1) no 'special' or 'additional' right is conferred on the

minorities.



Expression 'minorities' although is not defined in the

Constitution, one of us Khare, CJI, referred to the Year Book on Human

Rights (1950) and Encyclopaedia Britannica and some other standard

works on the theme of protection of minorities.

Though in para 153 the view regarding merit was expressed, but

while answering the question No. 7 was left open to be answered by the

appropriate Benches.

The majority opined that the minority status of a group of

persons would be determined on the basis of population of the State or

Union Territory concerned and not on the whole of the country. It was

further held that education within the meaning of the provision of

Article 30 would mean and include education from primary level to the

post-graduate level and would include professional education as well.



The Bench, however, overruled the dicta in Unni Krishnan's case

(supra) that education is not a 'business' or 'occupation' within the

meaning of Article 19(1)(g) of the Constitution of India, wherein

referring to State of Bombay Vs. R.M.D. Chamarbaugwala [1957 SCR 874]

and incorporating the doctrine of res extra commercium, the Court had

observed :



"While the conclusion that 'occupation'

comprehends the establishment of educational

institutions is correct, the proviso in the aforesaid

observation to the effect that this is so provided no

recognition is sought from the state or affiliation

from the concerned university is, with the utmost

respect, erroneous. The fundamental right to

establish an educational institution cannot be

confused with the right to ask for recognition or

affiliation."



While declaring that the Scheme framed in Unni Krishnan's case

(supra) and the directions issued to the Government, UGC and other

concerned bodies to give effect to the same vis--vis privately managed

educational institutions as unconstitutional, it upheld two

propositions : (1) primary education is a fundamental right; and (2)

the institution cannot charge any capitation fee or otherwise take

recourse to profiteering.

It was observed :



"The scheme framed by this Court in Unni Krishnan's

case and the direction to impose the same, except

where it holds that primary education is a

fundamental right, is unconstitutional. However, the

principle that there should not be capitation fee or

profiteering is correct. Reasonable surplus to meet

cost of expansion and augmentation of facilities does

not, however, amount to profiteering."



The Bench agreed with the contention of the private institutions

that affiliation and recognition has to be made available to every

institution that fulfils the conditions for grant thereof observing :

"The private institutions are right in

submitting that it is not open to the Court to insist

that statutory authorities should impose the terms of

the scheme as a condition for grant of affiliation or

recognition; this completely destroys the

institutional autonomy and the very objective of the

institution."



The Court, however, laid emphasis that in professional education

merit should be the criteria.

With a view to appreciate the extent to which the Scheme

formulated in Unni Krishnan was not found favour with T.M.A. Pai

Foundation (supra), we may set out the observations of this Court in

T.M.A. Pai Foundation (supra) as follows:

1. Establishment of Educational Institutions

All citizens have a right to establish and administer educational

institutions under Articles 19(1)(g) and 26, but this right is subject

to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos.

10 & 11).

2. Admission to Courses

(i) Private Unaided Professional Colleges:

(a) Admission to professional colleges should be based on merit




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