T.M.A. PAl FOUNDATION AND ORS. v. STATE OF KARNATAKA AND ORS.

OCTOBER 3 1, 2002

Articles 29(2) and 30(1)-Right of Aided Private Minority Institution to Administer itself-Government regulation-Extent of applicability to- Held, right under Article 30(1) is not absolute although right to administer includes right to grant admission to students of its choice-But when such minority institution is granted aid, Article 29(2) would apply-Hence one of the rights of administration of the minorities i.e. right to grant admission would be eroded to some extent-However, there is an interplay between the two Articles-Such an institution should admit non-minority students based on merit to a reasonable extent, whereby minority character of the institution is not annihilated and at the same time rights granted under Article 29(2) are not subverted-The reasonable extent would depend on variable factors and specific percentage cannot be fixed-Articles 28(1) and (3).

Article 30(2)-Meaning, Scope and effect of-Whether the provision H 587

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A gives a right to ask for grant and aid from the State-In case of State aided institution extent of its autonomy -Held, grant of aid is not a constitutional imperative-The provision means that grant of aid by State could not be denied to religious/linguistic minority institution only on the ground that the management of the institution is by minority-But if an abject surrender of right to management is. made a condition of aid, the denial of aid would be B violative of the provision-However, conditions of aid that do not involve a surrender pf substantial right of management would not be inconsistent with constitutional guarantees ev~n if they indirectly impinge upon some facets of administration-Article 337.

C Article 30(1), VII Schedule List III Entry 2 5-Linguistic and Religious Minority-Unit of-Whether within the State or the country as a whole- Held, it would be decided state-wise-Inclusion of 'education' in VII Schedule, List II/ Entry 25 would not affict determination ofa "religious" or "linguistic" minority.

Articles 26 and 30-Difference between-Discussed

E Unnikrishnan 's case-Reconsideration of-Held, the case, in so far as it framed the scheme relating to grant of admission andfv:ing offee, overruled.

Interpretation of Constitution-Harmonious construction-Held, when constitutional provisions are interpreted it has to be borne in mind that the interpretation should be such as to further the object for which they were F incorporated-They cannot be read in isolation and have to be read harmoniously to provide meaning and purpose-They cannot be interpreted as to render another provision redundant-Purposive and harmonious interpretation required.

Interpretation of Statute-Historical facts and Constituent Assembly G debates---'-Aid of-Held, aid can be taken for construing the provisions of an Act or the Constitution.

Doctrines:

Doctrine of real de facto equality-Applicability of H

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Words and Phrases: A "Occupation"-Meaning of in the context of Article 19(/)(g) of the Constitution of India, 1950. "Minority "-Meaning of

"Religious and Linguistic Minority"-Meaning ofin the context ofArticle B 30 of the Constitution.

"Private educational institution "-Meaning of

Earlier, a 5 Judges Bench of this Court was of the view that Article 30 of the Constitution of India did not clothe a minority educational institution with power to adopt its own method of selection and doubted C the correctness of the decision in St. Stephen's College v. University ofDelhi, [1992] 1 SCC 558. The matter was then placed before 7 Judges Bench who .directed the matter to be placed before 11 Judges Bench because it felt that in view of 42nd Amendment to the Constitution, whereby "education" had been included in Entry 25 of List III of VII Schedule of the D Constitution, the question as to who would be regarded as "minority" was required to be considered because the earlier cases deciding the issue related to pre-amendment era, when 'education' was only in State List. Eleven questions were referred to the Constitution Bench. In view of the arguments led by the parties in the petitions, the following five main issues arose for consideration: E

1. Is there a fundamental right to set up educational institutions and if so, under which provision?

2. Does Unnikrishnan 's case require reconsideration?

3. In case of private institutions, can there be Government F Regulations and, if so, to what extent?

4. In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit-the State or the country as a whole?

5. To what extent can the rights of aided private minority G institutions to administer be regulated?

Answering the questions, the Court

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A and Arijit Pasayat, JJ.)

1.1: The expression "education" means and includes education at all levels f~_om the primary school level upto the post-graduate level. It includes ·professional education. The expression "educational institutions" means institutions that impart education. The right to establish and B administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(l)(g) and 26, and to minorities specifically under Article 30. The right is subject to the provisions of _Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group. [708-D-F]

C .. 1.2. Article 19(1 )(g) em ploys four expressions, viz., profession, occupation, trade and business. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression "occupation". D Article 19(J)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, ~nd which can consequently be regulated under Article 19(6). "occupation" is, inter alia, defined as "an activity in which one engages" or "a craft, trade, profession or other means of earning a living". The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried 'on that results in the iin parting of knowledge to .the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity o{.a person undertaken as a means of livelihood or a mission in life. The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject matter of controls. 1640-D-F; 642-G, B)

Unnikrishnan JP. and Ors. v. State qfAndhra Pradesh and Ors., 1199;3) G t sec 645, partly overruled.

Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors., J1989J 4 sec 155, relied on. The State of Bombay v. R.MD. Chamarbaugwala, J1957J SCR 874:: AIR (1957) SC 699, referred to. H

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Webster's Third New International Dictionary, 1650; Corpus Juris A Secundum, Volume LXVII, referred to.

1.3. The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Articles 29(1) and 30(1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institution. Given this, the phrase "private educational institution" would include not only those educational institutions set up by secular persons or bodies, but also educational institutions set up by religious denominations; the word "private" is used in contradistinction to Government institutions. 1642-D~FJ D 2.1. The scheme framed by this Court in Unnikrishnan '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, E however, amount to profiteering. 1708-A, BJ

2.2. The restrictions imposed by the scheme, in Unnikrishnan 's case, made it difficult, if not impossible, for the educational institutions to run efficiently as a result of economic losses. Thus, such restrictions cannot be said to be reasonable restrictions under Article 19(6) of the Constitution. F 1647-BI

2.3. The Unnikrishnan juagment has created certain problems, and raised thorny· issues. In its :inxiety to check the. commercialization of ed'ocation, a scheme of "free:'' and "payment" seats was evolved on the assumption that the economic capacity of the first 50% of admitted G students would be greater than the remaining 50%, whereas the converse has proved to be the reality.: In this scheme, the "payment seat" student would not only pay for his own seat, but also finance the cost of a "free seat" classmate. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well- H

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A exposed urban student. [647-E, F)

2.4. By rraming this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the Government institutions; curtailing all the ' B essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. 1647-H; 648-AJ

2.5. Decision in Unni Krishnan's case, insofar as it framed the scheme relating to the grant of admission and the fixing or the fee, was not correct, C and to that extent, the said decision and the consequent directions given to UGC, AICTE, Medical Council of India, Central and State governments, etc., are overruled. 1649-GJ

Unni Krishnan JP. and Ors. v. State of Andhra Pradesh and Ors., (1993) 1 sec 645, partly overruled.

D R. Chitralekha and Anr. v. State of Mysore and Ors., 11964} 6 SCR 368; Minor P. Rajendran v. State of Madras and Ors., [1968] 2 SCR 7a6, Kumari Chitra Ghosh and Anr. v. Union of India and Ors., 11969] 2 SCC 228; St. Stephen's College v. University of Delhi, [1992] 1 SCC 558 and Mohini Jain (Miss) v. State ofKarnataka and Ors., [1992] 3 SCC 666, referred E to.

3.1. 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. [704-CI F 3.2. 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 concerned State or University, except for providing the qualifications and minimum conditions of-eligibility in the interest of academic standards. G [704-E]

3.3. The right to admit students being an essential facet of the right to administer educational institutions. of their choice, as contemplatecl under Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right, so long as thr~ H admission to the unaided educational institutions is on a transpar.ent basis

T.M.A. PAl FOUNDATION"· STATE OF KARNATAKA 593 and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory 111:easures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. [704-F, Gl r 3.4. The right to establish an educational institution can be regulated; but such regulatory measures must, in· general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. With regard to the core components .of ~he rights under Articles 19 and 26(a), while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. In setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the State or the concerned University. It will, however, be objectionable if the State retains the power to nominate specific individuals on governing bodies. F Nomination by the State, which could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers e.ither directly, by the department or through a service commission will be an unreasonable inroad and an G unreasonable restriction on the autonomy of the private unaided educational institution. [652-H; 653-A, B; 652-D-G]

3.5. There has to be a difference in the administration of private · unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, H

· . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R. 594 · d ' ad · sions and fixing. of rees, in the case of private unaided A me1u mg m15 · • · h institutions maximum autonomy in the day-to-day admmtstrahon as to be with th: private unaided institutions. Bureauc~ati~ or ~overnmen_tal interference in the administration of such an inshtutaon will undermtne its independence. While an educational institution is not a bu~iness, in order to examine the degree of independence that can be gtven to a B recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include recruiting students and staff, and the quantum or fee ·C that is to be charged. (653-E-G) : . . •. • l . .

.. 3.6. It would be unfair tQ apply the same rules and regulations r~gulating admission to both aided and unaided professional institutions. It must be born~ in mind that unaided professional institutions are entitled to ·a utonomy in their administration while, at the same time, they do not .D forego or discard the principle of merit. It would, therefore, be permissible for the University or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giv.ing the Management sufficient discretion in admitting students. The same principles may be applied to other non- E professional but unaided educational institutions \'iz., graduation an!~ post graduation non ~professional colleges or institutes. {658-G, H; 659-BJ

· 3.7. Inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and .F profiteering by th~ institution. 1654-D, El · . .

3.8. In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainty lay down conditions (or the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of G students and teachers .. but how the private unaided institutions are to I run is a matter of administration to be taken ~are of by the Management i· I of those institutions. Conditions granting recognition or affiliation can II broadly cover academic and educational matters including tbe welfure or !I students and teachers. 1658-E; 659-01 · , . Il f

! 3.9. Conditions or affiliation or recognition, which pertain to the II academic and educatioalal character of the institution and ensure A uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition _ should not be such as may lead to Governmental control of the administration of the private educational institutions. [660-A, B] B 3.10.0nce aid is granted to a private professional educational • institution, the Government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper main$enance of the high standards of education as the financial burden is c shared by the State. The State would also be under an obligation to protect . the interest of the teaching and non-teaching staff. At the same time it has to be ensured that even an aided institution does not become a Government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In D addition, the Management of the private aided institugons has to incur revenue and capital expenses. Such aided h.1stitutions cannot obt~in that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by Government or as a wholly owned and controlled Government E institution and interfere with constitution of the governing bodies or thrusting the staff without reference to Management. The autonomy of a private aided institution would be less than that of an unaided institution. (660-E, F; 661-B-D; 661-G] F Re: Kera/a Education Bill, 1957 (1959( SCR 995, relied on.

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4.1. Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines for the purpose of determining the minority, the unit will be the State and not the whole of G .. India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise. [703-E, Fl D.A. V. College v. State of Punjab and Ors., [19711 Supp. SCR 688 and D.A. V. College Bhalinda v. State of Punjab and Ors., 119711 Supp. SCR 677, relied on. H

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A Re: Kerala Education Bill, 1957 [195'9) SCR 995, referred to. 4.2. If the State has to be regarded as the unit for determining "linguistic minority" vis-a-vis Article 30, then with "religious minority" being on the same footing, it is the State in relation to which the majority or minority status will have to be determined. [662-D] B I

4.3. The Forty-Second Amendment to the Constitution included education in the Concurrent List under Entry 25. The minority for the purpose ·of Article 30 cannot have different meanings depending upon who is legislating. 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. [663-D-F] 5.1. 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 tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admissi9n, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellepce. 1705-EJ 5.2. !\ierit may be determined either through a common entrance test conducted by the concerned .University or the Government 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 alsn 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. [705-H; 706-A, BJ

5.3. 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 · H 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- A 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. [706:.0-E) B 5.4. 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 appropriate tribunals could be constituted, and .till then, such tribunals could' be presided ·over by a Judicial Officer of the rank of District Judge. [706-F, G] C 5.5. 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 p·rincipal of any educational institution. [706-G] 5.6. No person attending an educational institution can be required D . to take part in any religious instruction or any religious worship, unless the person or his/her guardian has given his/her consent thereto, in a case where the educational institution has been recognized by the State or receives aid out of its funds. In any institution, whether established by the majority or a minority religion, if religious instruction is imparted, no E student can be compelled to take part in the said religimJs instruction or in any religious worship. An individual has the absolute right not to be compelled to take part in any religious instruction or worship. Article 28(3) thereby recognizes the right of an individual to practice or profess his own religion. (666-B-DJ F· 5.7. To some extent, Article 26(1)(a) and Article 30(1) overlap, insofar as they relate to the establishment of educational institutions; but whereas Article 26 gives the right both to the majority as well as minority communities to establish and maintain institutions for charitable purposes, which would, inter alia, include educational institutions, Article 30(1) refers to the right of minorities to establish and maintain educational institutions G of their choice. Another difference between Article 26 and Article 30 is that whereas Article 26 refers only to religious denominations, Article 30 contains the right of religious as well as linguistic minorities to establish and administer educational institutions of their choice. 1667-C, D] The State of Madras v. Srimathi Champakam Dorairajan, 11951] SCR H

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A 525 and The State ofBombay v. Bombay Education Society and Ors., J19551 1 SCR 568, referred to.

5.8. Constitution in Part Ill does not contain or give any absolute ·~ right. All rights conferred in Part Ill of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that B the framers of the Constitution wouid have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other parts of the Constitution. It is difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the c Constitution, is to apply to them. [692-E, Fl

5.9. Even though the words of Article 30(1) are unqualified, this ,. Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) is, therefore, not absolute or above other provisions of the law. By D the same analogy, there is no reason why regulations or·conditions concerning, generally, the welfare of students and teachers should not be •- made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1). [693-A, Bl E 5.1 0. Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establi~h 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, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational. institutions. Any law or rule or regulation that would put the educationat institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the samE: time, there also cannot be any reverse discrimination. The essence ofi Article 30(1) is to ensure equal treatment between the majority and thf~ minority institutions. No one type or category of institution should bf! disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. A The minority institutions must be allowed to do what the non-minority institutions are permitted to do. (693-C-GI

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St..Xav,iers College v. University ofDelhi, 119921 1 SCC 558, relied on. 5.11. Like any other private unaided institutions, similar unaided B educational institutions administered. by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30. (693-G, H; 694-A]

5.12. The grant of aid is not a constitutional imperative. The founding c fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337. Article 30(2) only means what it states, viz., that a minority institution shall not be discriminated against when aid to educational institutions is granted. If an abject surrender of the right to management is made a condition of aid, the denial of aid would D be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration. If, however, aid were denied on the ground that the educational institution is under the management of a E minority, then such a denial would be completely invalid. The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. (694-B-F]

5.13. The right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish "-nd administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant. (694-H; 695-A) H

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A 5.14. It cannot be said that no conditions can be imposed while givin~: aid to a minority institution. Whether it is an institution run by th(~ majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed, Article 28(1) does not state that it applies only to educational institutions B that are not established or maintained by religious or linguistic minorities. Furthe-r~ ore, upon the receipt of aid, the provisions of Article 28{3) would apply to all educational institutions whether run by the minorities or the non-minorities. If Articles 28(1) and (3) apply to a minority institution that receives aid out of State funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like C Article 28(1) and Article 28(3), Article 29(2) refers to "any educational institution maintained by the State or receiving aid out of State funds". A minority institution would fall within the ambit of Article 29(2) in the same manner:in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to students. Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institl'ltion on the grounds only of religion, race, caste, language or arty of them._lt 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-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 Article 28(1) and (3), Article 29(2) and Article G 30 to suggest that, on receiving aid, Article 28(1) and (3) will apply, but Article 29(2) will not. Therefore, it cannot be said that the institutions covered by Article 30 are outside the injunction of Article 29(2). 1695-C-H; 696-A-E} 5.15. Article 29~2) is capable of two interpretations - one interpretation is the minority institution, once it takes any aid, cannot

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 60i make any reservation for its own community or show a preference at the time of admission. The other interpretation is that it is a protection against discrimination on the ground of religion, race, caste or language, and does not in any way come into play where the minority institution prefers students of its choice. [696-G, H; 697-B]

5.16. Both Articles 29 and 30 form a part of the Fundamental Rights B Chapter in Part III of the Constitution. Article 30 is confined to minorities, be it religious ot linguistic, and unlike Article 29(1), the right available under the said Article cannot be availed by any section of citizens. The main distinction between Article 29(1) and Article 30(1) is that in the former, the right is confined to conservation of language, script or culture. C The right given by Article 29(1) is fortified by Article 30(1), insofar as minorities are concerned. The right to establish an educational institution is not confined to conservation of language, script or culture. When constitutional provisions are interpreted, it has to be borne in mind that · the interpretation should be such as to further the object of their incorporation. They cannot be read in isolation and have to be read harmoniously to provide meaning and purpose. They cannot be interpreted in a manner that renders another provision redundant. If necessary, a purposive and harmonious interpretation should be given. f697-F, H; 698-AJ

5.17. 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. It is in this context that some interplay between Article 29(2) and Article 30(1) is required. As long as the minority educational institution permits admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even though the institution admits studen'ts of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any ·specific percentage. The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. Usually, at the school level, although it may be possible to H

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A fill up all the seats with students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reas1mable extent, whereby the B 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 guarantees enshrined in both C Article 29(2) and Article 30. [698-B, D; F-H; 699-A, BJ

St. Stephen's College v. University of Delhi, 119921 1 SCC 558, relied on.

5.18. The basic ratio laid down by this Court in St. Stephen's College D is correct. However, rigid percentage cannot be stipulated. It has to b'e left to the authorities to prescribe a reasonable percentage having regard to the type of institution, population and educationaJ needs of minoritie~:. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a collegl!, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located, the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. [707-G, 700-B, CJ

St. Stephen 's College v. University of Delhi, (1992] I SCC 558, partly overruled.

Indira Sawhney v. Union of india and Ors., 119921 Suppl. 3 SCC 215, Q referred to. 5.19. The aided linguistic minority educational institution is given the right to admit students belonging to the linguistic minority to a reasonable extent only to ensure that its minority character is preserv·ed and that the objective of establishing the institution is not defeated. If ~;o, H such an institution is under an obligation to admit the bulk of the students

p. 603 Copy page pinpoint

. fitting into the description of the minority community. Therefore, the A ·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. The management bodies of such institutions cannot resort to the device . of admitting the linguistic students of the adjoining State in which they are in a majority, under the facade of the protection given under Article 30(1). If not, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and 29(2) may be distorted. [700-G, H; 701-A, B]

5.20.The admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sw~et will and pleasure of the management of minority educational institutions. As the regulations to promote academic excellence and standards do not e~~croach 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 counselling by. a state agency. In the courses for which such a test and counselling 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. (700-D-FJ F 5.2J.It will be wrong to presume that the Government or the Legislature will act against the Constitution or contrary to the public or national interest at all times. Viewing every action of the Government with skepticism, and with the belief that it must be invalid unless proved otherwise, goes against the democratic form of Government. It is no doubt true that the Court has the power and the function to see that no one G including the Government acts contrary to the law, but the cardinal principle of our jurisprudence is that it is for the person who alleges that the law has been violated to prove it to be so. In such an event, the action of the Gove.r::nment or the authority may have to be carefully examined, -·· but it js.,f:mpro.per to.,. proceed on the assumption that, merely because an H ~-- ··~

604 . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A allegation is made, the action impugned or taken must be bad in law. Such being the position, when the Government frames rules and regulations or lays down norms, especially with regard to education, one must assume that unless shown otherwise, the action taken is in accordance with law. Therefore, it will not be in order to so interpret a Constitution, and Articles. 29 and 30 in particular, on the presumption that the State will normally B not act in the interest of the general public or in the interest of concerned! sections of the society. [701-D-G]

Rev. Sidhajbhai Sabhai and Ors. v. State ofBombay and Anr., [1963} 3 SCR 837; Rev. Father W Proost and Ors. v. The State of Bihar and Ors., C [1969} 2 SCR 73; Sta'f ?f Kerala, Etc. v. Very Rev. Mother Provincial, etc., [1971] 1 SCR 734; D.A.!V. College v. State ofPunjab andOrs., [1971] Supp. SCR 688; The Ahmedabad St. Xaviers College Society and Anr. etc. v. State ofGujarat and Anr., [1975] 1 SCR 17.3; Lilly Kurian v. Sr. Lewina and Ors., [1979] 1 SCR 820;Christian Medical College Hospital Employees' Union and Anr. v. Christian Medical College Vel/ore Association and Ors., [1988]1 SCR D 546; Gandhi Faizeam College Shahajhanpur v. University of Agra and Anr, [1975]3 SCR 810; All Saints High School, Hyderabad Etc. Etc. v. Government of A.P. and Ors. Etc. [1980] 2 SCR 924; Frank Anthony Public School Employees Association v. Union of India and Ors., [1987] 1 SCR 238 and Re: Kerala Education Bill, [1957-1959] SCR 995, referred to.

E Per V.N. Khare, 1 (Supplementing):

1.1. The test who are linguistic or religious minorities within the meaning of Article 30 would be one and the same either in relation to a State legislation or Central legislation. There cannot be two tests one in relation to Central legislation and other in relation to State legislation. F Therefore, the meaning assigned to linguistic or religious minorities would not be different when the subject "Education" has been transferred to the "Concurrent List" from the "State List". The test who are linguistic or religious minorities as settled in Kerala Education Bill's case continues llo hold good even after the subject "Education" was transposed into Entry •G 25 List III of Seventh Schedule by the 42nd Amendment Act. If differetnt meaning is given to the expression ''minority" occurring in Article 30 in relation to a central legislation, the very purpose for which protection h:as been given to minority would disappear. The test to determine the status of linguistic minority would not be different than the religious minoritit~s. (716-D-GI 'H

p. 605 Copy page pinpoint

1.2. The transposition of the subject Education from List II and List A III has not brought change to the test for determining who are minorities for the purposes of Article 30 of the Constitution. Various entries in three lists of the Seventh Schedule are not powers of legislation but fields of legislation. These entries are mere legislative heads and demarcate the area over which the appropriate legislatures are empowered to enact law. The power to legislate is given to the appropriate legislature by Article 246 B and other Articles of the Constitution. (715-E, F]

Kerala Education Bill, 1957 [1959] SCR 995, relied on. D.A. V. College v. State of Punjab, 11971) Suppl. S.C.R. 697, distinguished. c A.M Patroni v. F. C. Kesavan, AIR (1965) Kerala 75, referred to.

2.1. Although Article 30(1) strictly may not be subject to reasonable restrictions, it cannot be disputed that Article 30(1) is subject to Article 28(3) and also general laws and the laws made in the interests of national security, public order, morality and the like governing such institutions will have to be necessarily read into Article 30(1 ). It cannot be held that the Fundamental Right guaranteed under Article 30(1) is absolute in terms. Thus, looking into the precedents, historical fact and Constituent Assembly debates and also interpreting Articles 29(2) and 30(1) contextually and textually, the irrestible conclusion is that Article 30(1) is subject to Article 29(2) of the Constitution. 1734-F-HI

The State of Bombay v. Bombay Education Society and Ors., [1955]1 SCR 568; Kerala Education Bill, [1957-1959] SCR 995; D.A. V. College etc. v. State ofPunjab and Ors., [1971] Sup pl. SCR 688 and St. Stephen's College v. University of Delhi, (1992]1 sec 558, relied on. F Rev. Father W. Proost and Ors. v. The State of Bihar and Ors., [19691 2 SCR 7~; State of Kerala etc. v. Very Rev. Mother Provincial etc., 119711 1 SCR 734; Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., 11963( 3 SCR 837; Rev. Magr. Mark v. Government of Kerala and Ors., [1979) 1 SCR 609 and State ofMadras v. ~rimathi Champakam Dorairajan etc., (19511 .G SCR 525, referred to.

2.2. Rights conferred on linguistic or religious minorities are not in the nature of privilege or concession, but their entitJement flows from the doctrine of equality, which is the real de facto equality. Equality in law precludes discrimination of any kind, whereas equality in fact may involve H

p. 606 Copy page pinpoint

' A the necessity of different treatment in order to attain a result which I establishes equilibrium between different situations. Where there is a plurality in a society, the object of law should be not to split the minority group which makes up the society, but to find ~t political, social and legal ... means of preventing them from falling apart and so destroying the society B of which they are members. The attempt should be made to assimilate the minorities with majority. It is a matter of common ~nowledge that in some of the democratic countries where minority rights were not protected, those democracies acquired status of theocratic States. (737·G, H; 738·A, B)

C . 2.3. Right conferred on minority under Artkle 30(1) would serve no purpose when they cannot admit students of their own community in their own institutions. In order to make Article 30(1) workable and meaningful, such rights must be interpreted in the manner in which they serve the minorities as well as the mandate contained in Article 29(2). Thus, where minorities are found to have established and admiuistering their own D educational institutions, the doctrine of the real de facto equality has to be applied. The doctrine of the real de facto equality envisages giving a preferential treatmen1: to members of minorities in the matter of admission in their own institution. On application of doctrine of the real de facto equality in such a situation not only Article 30(1) would be workable and meaningful, but it would also serve the mandate contained in Article 29(2}. E Thus while maintaining the rule of non·discrimination envisaged by Article 29(2), the minorities should have also right to give preference to th~: students of their own community in the matter of admission in their ow111 institution. Otherwise, there would be no meaningful purpose of Articlf~ 30(1) in the Constitution. {738-D-F) · F 2.4. If Article 29(2) is meant for the benefit of minority, there was no sense in. using the word 'caste' in Article 29(2). The word 'caste' i.s unheard of in religious minority communities and, therefore, Article 29(2) was never intended by the framers of the Constitution to confer any exclusive rights to the minorities. (734·E] G 2.5. Even if ·there are no qualifying expressions "subject to other provisions of this part" and "notwithstanding anything" either in Article 30(1) or Article 29(2), Article 30(1) is subject to Article 29(2) of the Constitution. 1734-Dl

H The Durgah Committee,· Ajmer and Anr. v. Syed Hussain Ali and Ors.,

p. 607 Copy page pinpoint

[1962] I SCR 383 and Tikayat Shri Govindlalji Maharaj v. The State of A Rpjasthan and Ors., 119641 t SCR 561, relied on.

Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., 11963] 3 SCR 837, referred to.

2.6. Article 337 of the Constitution provides that grants or B Government aid has to be given to the Anglo-Indian institution provided they admit 40% of members from other community. Taking the clue from Article 337 and spirit behind Article 30(1), it appears appropriate that "''tlinority educational institutions be given preferential rights in the matter · · of admission of children of their community in their own institutions while admitting students of non-minorities which, advisedly, may be upto 50% C based on inter se merits of such students. However, it would be subject to assessment of the actual requirement of the minorities, the types of the institutions and the courses of education for which admission is being sought for and other relevant factors. [739-A-C]

State of Madras v. Srimathi Champakam Dorairajan etc., 11951] SCR D 525, relied on. The Ahmedabad St. Xavier's College Society and Anr. etc. v. State of Gujarat and Anr., [19751 1 SCR 173, referred to.

"Rights of Persons Belonging to Ethnic, Religious or Linguistic E Minorities" by Prof. Francesco Capotorti, referred .to.

3.1. State must see that the regulatory measures of control of such institutions should be minimum and there should not be interference in the internal or day-to-day working of the Management. However, the State would be justified in enforcing the s~andard of education in such institutions. In case of minority professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. It is for the reason that the products of such professional institutions are not only going to serve the minorities but also to majority community. So far as the redressal of grievances of staff and teachers of minority institutions are concerned, a mechanism has to be evolved. Setting· up a Tribunal for particular class of employees is neither expedient nor condudve to the interest of such employee. In that view of tbe matter, each District Judge which includes the Addl. District Judge of the respective district be designated as Tribunal for redressal of the grievances of the employee and staff of such institutions. (739-D-FJ H

p. 608 Copy page pinpoint

A 3.2. Seeing the nature of the minority institutions the grounds available under labour laws are too wide and it would be appropriate if adverse decisions of the Management are tested on grounds of breach of principl~s of natural justice and fair play or any regulation made in that respect. [739-G, HI

B 4. One of the known methods to interpret a provision of an enactment or the Constitution is to look into the historical facts or any document preceding the legislation. Constituent Assembly debates although not conclusive, yet the intention of framers of the Constitution in enacting provisions. of the Constitution can throw light in ascertaining C the intention behind such provision. The report of the Constituent Assembly debates can legitimately be taken into consideration for construction of the provisions of the Act or the Constitution. (724-B, H; 725-AI

His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State ofKera/a D and Anr. Etc., [1973) 4 SCC 225 and R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684, relied on.

Per Quadri; J. (Partly dissenting):

1.1. All the citizens have a right to establi~h and administer E educational institutions under Articles 19(1)(g) and 26.The minorities have an additional right to establish and administer educational institution 'of their choice' under Article 30(1). The extent of these rights are, therefore, different. A comparison of Articles 19,26 and 30 would show that whereas the educational institutions established and run by the citizens under Article 19(l)(g) and Article 26(a) are subject to the discipline pf Article§. F I 9(6) and 26 there are no such limitations in Article 30 of the Constitution~, so in that the right conferred thereunder is absolute. H~wever, tht! educational institutions established by the minorities under Article 30(1 ) will be subject only to the regulatory measures which should be consisten1t with Article 30(1) of the Constitution. The right of the minority institution~; G to admit students of the minority, if any, would not be affected in any way by receipt of State aid. [745-E-H)

1.2. Regulations postulated for granting recognition or aid ought to be with regard to excellence of education and efficiency of administration, viz., to make certain healthy surroundings for the institutions, existence H of competent teachers possessing requisite qualifications and maintaining ..

p. 609 Copy page pinpoint

fair standard of teaching. Such regulations are not restrictions on the right A but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert mal- administration 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. [749-C, DJ B In re: Kera/a Education Bill, (1957-1959] SCR 995, relied on.

Ahmedabad St. Xaviers College Society and Anr. etc. v. State ofGujarat and Anr., {1975) 1 SCR 173, referred to. c 1.3. The sine qua non of a good and efficient administration is that it is fair and transparent. Therefore, it will be in the fitness of things and in the interest of good administration of the minority educational institutions (whether aided or unaided) to frame their own regulations. This will inspire confidence in both the State and its agencies as well as the public and the student community. (749-G, H; 750-A)

1.4. If the evil of collection of capitation fee is done away with by the private educational institutions (both non-minority and minority) much of the controversy about intervention by the State and complaints by citizens could be avoided. Collection Qf capitation fee being the wors~ part of mal-administration can properly be the subject-matter of regulatory control of a State. Receiving donations by an educational institution, unconnected with admission of students, could not obviously be treated as an equivalent of collection of capitation fee. [750-D, E)

1.5. The expression 'of their choice' includes not only the choice of . F the institution to be established and administered by the minorities, like institution for elementary, primary, secondary, university, vocational and technical and medical education, but also the choice of the students who have to be imparted education in such institutions. {746-G-H; 747-A]

The State of Bombay v. Bombay Education Society and Ors.. [1955) 1 G SCR 568; In Re: The Kerala Education Bill, (1957·1959] SCR 995; D.A. V. College, Jullunder etc. v. The State of Punjab and Ors., AIR (1971) SC 1737 and The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr., [1975] 1 SCR 173, referred to.

1.6. The expression 'to establish' means to set up on permanent basis. H

610 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A The expression 'to administer' means to manage or to attend to the running of the affairs. 1747-Bl ·,

Ahmedabad St. Xaviers College Society and Anr. etc. v. State ofGuja~at and Anr., (197511 SCR 173, relied on.

B t'. 7. To make the right under Article 30 real and effective, the regulatory measures have to be consistent with that right. Regulations could be aimed at excellence of education and efficient administration of such institutions as that would be i.n the interest of the educationaR institutions of the minorities. Any regulation which is not in the interest of the minority educational institutions but is in the interest of an outsidl! C agency would whittle down the right of the minority to administer the institution and would be violative of Article 30 of the Constitution. Tht~ true t~st to judge the validity of any regulations imposed by the State fo:r grant~ng recognition and/or aid is the dual test viz., (i) the regulations must be reasonable; and (ii) it must be regulative of the educational character D of the institution and conducive to making the institution an effecHve vehicle of education for the minority community or other persons who resort to it. (755-A-C] . ·~'

Sidhajbhai Sabhai and Ors. v. State ofBombay and Anr., [1963) 3 SCJR 837 a'n(l The Ahmedabad St. Xavier's College Society and Anr. Etc. v. State E o[Gujarat and Anr:, [1975]' 1 SCR 173, relied on. .

1.8. There can. be no demur to the dicta that Government regulations cannot destroy the minority character of the institution or make the riglbt to establish and administer a mere illusion but to say that the right under Article 30 is not so absolute as to be above the law, would, amount to F confe'~ring ,. supremacy to the ordinary law over the provisions of tllte Cons!itution which would be contrary to Article 13 of the Constitution, as the laws whether existing or. made in exercise of power conferred IDy the c;onstitution have to be consistent with the provisions of the Constitution and Part III which includes Article 30 and not vice versa. (758-C, D] G Constitutional Laws of India by H.M. Seervai 3rd Edn.; Law Lexicon 2nd Edition, Reprint 2000, referred to.

1.9. The limitations incorporated in Articles 19, 25 and 26 canu1ot be read into Article 30. What Article 30 predicates is institutional H autonomy on the educational institutions established and administered in

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 6}] exercise of the right conferred thereunder, which cannot be interfered with ·A by the State except to the extent of framing reasonable regulations in the interest of excellence of education and to prevent mal-administration. · 1759-H; 760-AI

The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr., [1975] 1 SCR 173; D.A. V. College, Jul/under etc. v. The B State of Punjab and Ors., AIR (1971) SC l 737; State of Kerala v. Very Rev Mother Provincial Etc., [197111 SCR 734; Father W. Proost and Ors. v. State of Bihar ancfOrs., (1969] 2 SCR 73; Rt. Rev. Bishop S.K.Patro and Ors. v. State of Bihar and Ors., [1970] I SCR 172 and In All Saints High School, Hyderabad etc. etc. v. Govt. of Andhra Pradesh and Ors. etc., 11980] 2 SCR C 924, relied on. • Lilly Kurian v. Sr. Lewina, 1197911 SCR 820, referred to.

1.10. The framers of the Constitution, who have subjected the fundamental rights under Articles 25 and 26 to limitations contained therein, chose not to subject Article 30(1) to any such limitation. In incorporating the right of the minorities, whether based on religion or language, to establish and -administer educational institutions 'of their choice' which obviously postulates secular education, they were not unmindful of the fact that the right which was conferred under Article 30 was also in respect of a secular aspect. It \YOuld be erroneous to assume that in placing limitations on certain Fundamental Rights and omitting to do so on certain others, if are inconsequential, they carried on the exercise in·futility. Such an assumption cannot be made in respect of any legislation, much less can it be assumed in regard to ~he Constituent Assembly. (751-D, E] F 1:11. It cannot be said that though the Constitution itself has not subjected the right under Article 30 to the regulatory control of the State or to other limitations as in Articles 19, 25 and 26, the State's regulatory power and other limitations incorporated in the aforemention~d Articles should be read in Article 30 of the Constitution or that incorporating G limitations in Articles 19, 25, 26 ~nd not incorporating them in Article 30 is of no significance, cannot but be rejected. When the Constitution itself has designedly not imposed or permitted imposition of any limitation or restriction by the State on a fundamental right under Article 30, neither the Court by process of interpretation nor legislation much less an exclusive regulation can be permitted to cut down the width of the H

p. 612 Copy page pinpoint

A constitutional right termed as a fundamental right. [751-F-H)

In re: Kerala Education Bill, (1957-1959) SCR995, relied on.

1.i2. The legislative power of a State or Union is subject to the fundamental rights and the legislature cannot indirectly take away or abridge fundamental rights which it could not do directly for granting either recognition or aid. [752-C)

2.1. Article 29(2) does not apply to a private educational institution which is not receiving aid out of State funds. Article 29(2) confers an individual right on every citizen to seek admission into any educationalt institution maintained by the State or receiving aid out of State funds. It embodies the principle of equality in a truncated form and, therefore, a. citizen can be denied admission by an educational institution whethel' maintained by the State or receiving aid out of State funds on ground other than the prohibited grounds - religion, race, caste, language or any one of them. The denial of admission by an institution directly based only on one of the forbidden grounds specified in Article 29(2) is impermissible. It is a qualified extension of the principle enshrined in Articles 14 and 15(1) of the Constitution. It affords a limited protection to citizens against discrimination on the enumerated grounds of religion, race, caste, language or any one of them. In. contra-distinction to Article 14, which is an all pervading general provision and Article 15(1), clause (2) of Article 29 has a limited scope. [760-D, E; 761-C, EJ

2.3. Granting of aid to minority institutions cannot be such as to denude them of their character as minority institutions. Eve~;~ after receiving aid, they remain minority educational institutions in aH their attributes. On grant of aid by the State, Article 29(2) does not control H Article 30(1). (763-AJ

p. 613 Copy page pinpoint

Pradeep Kumar Biswas and Ors. v. Indian Institute ofChemical Biology A and Ors., [2002] 5 SCC 111; referred to.

2.4. The right conferred on the student community under Article 29(2) is a truncated right though it is available to each student and against all the institutions maintained by the State or receiving aid from the State funds. Nevertheless, the right under Article 30(1) is ~ special right conferred on minorities, whether based on religion or language, to establish and to administer educational institutions of their choice and with that goes the special right of the minority students to seek admission in such institutions. Article 29(2) even if regarded as a special right in regard to the student community is of general application in regard to all the institutions maintained by the State or receiving aid from the State funds when compared to special right conferred on minorities under Article 30. A provision may be special in one aspect and general in other aspect. [763~B~D)

Ashoka Marketing Ltd. and Anr. v. Punjab National Bank, AIR (1991) D SC 855 and The Lifo Insurance Corporation of India v. D. J. Bahadur and Ors.,. AIR (1980) SC 2181, relied on.

2.5. On the principle of generalia specia/ibus non derogant, the general right of the students under Article 29(2) of the Constitution available in respect of au educational institutions in general does not prevail over the special right conferred on the minority educational institutions established and administered under Article 30(1) and receiving aid by virtue of Article 30(2) of the Constitution.. f763-G I

2.6. Unlike Article337, there is nothing in clause (2) of Article 30 to suggest that gr:ant of aid will result in making a percentage of seats available for non-minority students or be subject to Article 29(2). On the institutions deciding to take aid from the State, the right of minority students to seek admission in such institutions cannot be affected. [764-B, D)

Regents of the University of California v. Bakke; 438 US 265 (1.978); G City of Richmond v. JA. Croson Co., 488 .u.s. 469 and United Steelworkers v. Weber, 443 U.S.l93 (1979), referred to.

2. 7. There is nothing specific in the constitutional debates to suggest that Article 29(2) was intended to cut down the rights conferred under clauses (l) and (2) of Article 30 of the Constitution. 1767-C) H

614 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A 2.8. By serving their own linguistic minorities and throwing their institution open to the majority groups only on fulfillment of the need of · minorities in a State, is not in violation of the scheme of Article 29(2) and Article 30 of the Constitution. Therefore, by not applying Article 29(2) of the Constitution to minority educational institutions based on religion or language, the principle of equality or secularism will not in any way be violated. [771-B, C]

2.9. Fixing a percentage for intake of minority students in minority education institutions would impinge upon the right under Article 30 as it would amount to cutting down that right. The best way to ensure compliance with Article 29(2) as well as Article 30(1) is to consider individual cases where denial of admission of a non-minority student by a minority educational institution is alleged to be in violation of Article 29(2) and provide appropriate relief. (774-D, El

St. Stephen's College v. University of Delhi, (19921 1 SCC 558, D overr~l,ed.

The State of Bombay v. Bombay Education Society and Ors., (1955J I SCR 568 and Re: Kerala Education Bill, [1957-1959) SCR 995., distinguished. State of Madras v. Srimathi Champakam dorairajan etc., (19511 SCR E 525, referred to. 2.1 0. It cannot be said that if Article 28 applies to institutions established and administered under Article 30(1), Article 29(2) also should be applicable to it. The right co~ferred under any provision of the Constitution including Article 30 does not either expressly or by necessary implication empower any educational institution including a minority educational institution to compel anybody to have instructions in the educational institution established and administered thereunder much less religious instructions or to attend any religious worship. Article 28 forms part of the group of Articles placed under the caption 'Right to freedom of Religion' and not part of 'Cultural and Educational Rights'. But that apart, clause (3} of Article 28 is a personal right. It is a specles of the principle of freedom of religion enshrined in Article 25. Article 28(3) stands in the same position to Article 25(1) as Article 29(2) to Article 15(1). (775-F-Hl

2.1 1. It cannot be said that just as Article 26 was held to be subject H to Article 25, so also Article 30 should be read subject to Article 29(2). A 1776-B}

p. 615 Copy page pinpoint

The Dargah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., [1962] I SCR 383 and Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and Ors., [1964] I SCR 561, distinguished. B 2.12. To create inroads into the constitutional protection granted to minority educational institutions by forcing students of dominant groups of the choice of the State or agenr.y of the State for admission in. such institutions in preference to the choice of minority educational institutions will amount to a clear violation of the right specifically guaranteed under Article 30(1) of the Constitution and will turn the Fundamental Right into C a promise of unreality which will be impermissible. Right of minorities to ... admit students of non-minority of their choice in their educational institutions set up under Article 30 is one thing but thrusting students of non-minority on minority educational institutions, whatever may be the percentage, irrespective of and prejudicial to the need of the minority in such institution, is entirely another. lt is the former and not the latter course of action which will be in conformity with the sc:heme of clause (2) of Article 29 and clauses (1) and (2) of Article 30 of the Constitution.. [776-D-E}

3. Admissibility of speeches made in the Constituent Assembly for interpreting provisions of the Constitution is not permissible. [766-C]

A.~. Gopalan v. State of Madras, AIR (1950) SC 27 and Trav-Cochin v. Bombay Company Ltd., AIR (1952) SC 366, relied on.

His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, F [1973] 4 SCC 225; R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684; /ndra Sawhney etc. etc. v. Union of India and Ors. etc. etc., AIR (1993) SC 477; K.S. Paripoornan v. State ofKerala, AIR (1995) SC 1012 and P. V. Narasimha Rao v. State, (CBI/SPE) AIR (1998) SC 2120, referred to.

Black-Clawson v. Papierwerke AG, [1975 AC 5911 and of the Privy G Council in Administrator-General of Bengal v. Prem Nath Mullick, 1895 (22) I.A. 107, referred to. Ruma Pal, J. (Partly dissenting)

1. The question whether a group is a minority or not must be determined in relation to the source and territorial application of the H

p. 616 Copy page pinpoint

A particular legislation against which protection is claimed. The protection under Article 30 is against any measure, legislative or otherwise, which infringes the rights granted under that Article. The right is not claimed in a vacuum-it is claimed against a particular legislative or executive measure and the question of minority status must be judged in relation to the offending piece of legislation or executive order. If the source of the infringing action is the State, then the protection must be given against the State and the status of the individual or group claiming the protection must be determined with reference to the territorial limits of the State. If however the protection is limited to State action, it will leave the group which is otherwise a majority for the purpose of State legislation, vulnerable to Union legislation which operates on a national basis. When the entire nation is sought to be affected, surely the question of minority status ,must be determined with reference to the country as a whole. [779-B; 777-B, C) Re: Kerala Education Bill, (1957-1959] SCR 995; D.A. V. College v. D State of Punjab, I [1971] Supp. SCR 688 and D.A. V. College v. State of Punjab, (II) [1971] Supp. SCR 677, referred to.

2.1. Article 30(1) creates a special class in the field of educational institutions - a -class which is entitled to special protection in the matter of setting up and administering educational institutions of their choice. E [786-H; 787-A) In Re: Kerala Education Bill, [1957- 1959) SCR 995; Rev. Sidhajbhai Sabhai v. State of Bombay, [1963) 3 SCR 837; Rev. Father W. Proost and Ors. v. State ofBihar, 11969) 2 SCR 173; State ofKerala v. Very Rev. Mother Provincial, [1971 J I SCR 734; The Ahmedabad St. Xaviers College Society F and Anr. etc. v. State ofGujarat and Anr., [1975] l SCR 173 and Lily Kurian v. Lewina, [1979] 2 SCC 124, referred to.

2.2. A semantic analysis of the words used in Article 30(1) indicates that the right to admit students is an intrinsic part of Article 30(1). The right to set up an educational institution necessarily includes not only the G selection of teachers or educators but also the admission of students. If the administration of an. educational institution includes and means its organisation then the organisation cannot be limited to the infrastructure for the purposes of education and exclude the persons for whom the infrastructure is set up, namely, the students. The right to admit students is, therefore, part of the right to administer an educational institution. H 1787-C, D, El

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2.3. The benefit which has been guaranteed under Article 30 is a A protection or benefit guaranteed to all members of the minority as a whole. The content of the right lies not in merely managing an educational institution but doing so for the benefit of the community. Benefit can only the right to establish and set up an organisation for giving education an end in itself, and ~eny them the benefit of the education. This would 's B lie in the education received. It would be meaningless. to give the minorities...

render the right a mere form without any content. The benefit to the community and the purpose of the grant of the right is in the actual education of the members of the community. (787-F; 788-A-C)

2.4. The words 'of their choice' occurring in Article 30(1) is not C qualified by any words of limitation and would include the right to admit students of the minority's choice. Since the primary purpose of Article 30(1) is to give the benefit to the members of the minority community in question that 'choice' cannot be exercised in· a manner. that deprives the community of the benefit. Therefore, the choice must be directed towards fulfilling the needs of the community. How that n~ed is met, whether by D ;~eneral education or otherwise, is for the community to determine. [788-D]

State of Bombay v. Bombay Education Society, [1955] 1 SCR 568; Kera/a Education Bill, [1957-1959] SCR 995; Rev. Sidhajbhai Sabhai v. State of Bombay, [1963) 3 SCR 837; The Ahmedabad St. Xaviers College, E Society and Anr. v. State of Gujarat and Anr., [1975] 1 SCR 173 and St. Stephen's College v. University of Delhi, [1992) 1 SCC 558, referred to.

2.5. The right to admission being an essential part of the constitutional guarantee under Article 30(1), a curtailment of that fundamental right in so far as it affects the benefit of the minority F community would amount to an infringement of that guarantee. [790-F]

2.6. An Institution set up by minorities for educating members of the minority community does not cease to be a minority institution merely because it takes aid. There is nothing in Article 30(1) which allows the drawing of a distinction in the exercise of the right under that Article G between needy minorities and affluent ones. Article 30(2) of the Constitution reinforces this when it says, "The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language". This !!ssumes that even after the H

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A grant of aid by the State to an educational institution under the management of the minority, the educational institution continues to be a minority educational institution. In the context of Article 30(1) and having regard to the content of the right, namely, the education of the minority , community, the word 'management' in Article 30(2) must be construed to mean the 'process' and not the 'persons' in management. 'Aid' by definition means to give support or to help or assist. It cannot be that by giving 'aid' one destroys those to whom 'aid' is given. "The obvious purpose , of Article 30(2) is to forbid the State from refusing aid to a minority educational institution merely because it is being run as a minority ed·ucational institution. Besides Article 30(2) is an additional right conferred on minorities under Article 30(1). It cannot be construed in a llUlnner which is destructive o.f or as a limitation on Article 30(1). Therefore, grant of aid under Article 30(2) cannot be used as a lever to take away the rights of the minorities under Article 30(1). . [790-F-H; 791-B-DI

D Rev. Sidhajbhai Sqbhai v. State of Bombay, (1963] 3 SCR 837, relied on. ,, .

Kiidangazhi Manakkal Narayanan Nambudirpad v. State of Madras, AIR (1954) Madras 385; Ramanuja v. State of Tamil Nadu, AIR (1972) SC E 1586; Quareshi v. State ofBihar, (1959] SCR 629; Chiranjit La/ Chowdhury, v. Union of India and Ors., [19591 SCR 869 and Keshawananda Bharti v. State of Kera/a, AIR (1973) SC 146, referred to.

Reynolds v. United States, [1978] 98 US 145; Everson v. Board of Education, 330 IUS l and Tiiinois v. Board of Education, 1947 (82) Law Ed. F 649, referred to.

Concise Oxford Dictionary lOth Edition 864, referred to.

3.1. The right to admit minority students to a minority educational institution is an intrinsic part of Article 30(1) . To say that Article 29(2) G prevails over Article 30(1) would be to infringe and to a large extent wipe out this right. The-re would ·be no distinction between a minority educational institution and other institutions and the rights under Article 30(1) would be rendered wholly inoperational. It is no answer to say that the rights of unaided minority institutions would remain untouched because Article 29(2) does not relate to unaided institutions at all. Whereas H if one reads Article 29(2) as subject to Article 30(1) then effect can be given to both. And it is the latter approach which is to be followed in the interpretation of constitutional provisions. In other words as long as the minority educational institution is being run for the benefit of and catering '. to the needs of the members of that community under Article 30(1), Article 29(2) would not apply. But once the minority educational institution travels beyond the needs in the sense of requirements of its own community, at that stage it is no longer exercising rights of admission guaranteed under Article 30(1). To pot it differently, when the right of admission is exercised not to meet the need of the minorities, the rights of admisiion given under Article 30(1) is to that extent removed and the institution is bound to admit students for the balance in keeping with the provisions of Article 29(2). (795-D-G] C Kerala Education Bill, (1957-1959) SCR 995; Ahmedabad St. Xaviers · College and Anr. etc. v. State ofGujarat and Anr., (1975)1 SCR 173 and Sri Venkataramana Dev Aru v. State of Mysorl3; [1958] SCR 895, referred to. D 3.2. Article 29(2) does. not operate to deprive aided . minority institutions the right to admit members of their community to educational institutions established and administered by them either on any principle of interpretation or on any concept of equality or secularism. 1796-B, Cl

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3.3. Article 29(2) has not been expressed as a positive right. E Nevertheless in substance it confers a right on a person not to be denied admission into an aided institution only on ~he basis of religion, race etc. . The language of Article 29(2) renects the language used iil other non- discriminatory Articles in the Constitution namely, clauses (1) and (2) of Article IS and clauses (I) and (2) of Article 16. (792-A, BJ F 3.4. Article 29(2) does not create an absolute right for citizens to be admitted into any educational institution maintained by the State or receiving aid out of State funds. It does not prohibit the denial of admission on grounds other than religion, race, caste or language. Therefore, reservation of admissions on the ground of residence, occupation of parents G or other bases has been held to be a valid classification which does not derogate from the principles of equality under Article 14. Even in respect of the "prohibited" bases, like the,.other non-discriminatory Articles, Article 29 (2) is constitutionally subject to the principle of 'rational classification'. If a person is denied admission on the basis of a constitutional right, that is not a denial only on the basis of religion, race H

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A etc. This ~s exemplified in Article 15(4). (792-E-Gl

Kumari Chitra Ghosh v. Union of India, 1196912 SCC 228 and D.N. Chanchala v. State of Mysore, (19711 Supp. SCR 608, referred to. • '

3:8. Even on general principles of interpretation, it cannot be said H that Article 29(2) is absolute and in effect wipes out Article 30(1). Article A 29(2) refers to 'any educational institution'-the word "any" signifying the generality of its application. Article 30(1) on the other hand refers to 'educational institutions established and administered by minorities'. Clearly, the right under Article 30(1) is the more particular right and on the principle of 'generalia specialibus non derogant' , it must be held that B Article 29(2) does not override the educational institutions even if they are aided under Article 30(1). [793-H; 794-A, B]

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Bhinka V. Charan Singh, AIR (1959) SC 960; relied on.

Pandit MS.M. Sharma v. Shri Sri Krishna Sinha, 11959) Suppl. 1 SCR 806 and In Re: The Central Provinces and Berar Sales of Motor Spirit and C Lubricants Taxation Act, 1938 (Central Provinces and Berar Act No.· XIV of 1938), referred to.

3.9. Article 29(2) appears under the heading 'Protection of interests of minorities'. On general principles of interpretation, the heading is at least a pointer or aid in construing the meaning of Article 29(2). Therefore, D if two interpretations of the words of Article 29(2) are possible, the one which is in keeping with the heading of the Article must be preferred. It would follow that Article 29(2) must be construed in a manner protective of minority interests and not destructive of them. 1794-B-D)

3.10. Article 28(1) and (3) do not in terms apply to linguistic minority educational institutions at all. Furthermore, the right to set up an educational institution in which religious instruction is to be imparted is a right which is derived from Article 26(a) which provides that every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes, and not under Article 30(1). Educational institutions set up under Article 26(a) are, therefore~ subject to clauses (1) and (3) of Article 28. Article 30(1) is a right additional to Article 26(a). This follows from the fact that it has been separately and expressly provided for and there is nothing in the language of Article 30(1) making the right thereunder subject to Articles 25 and 26. Unless it is so construed Article 30(1) would be rendered redundant. Therefore, what Article 30 does is to secure the minorities the additional right to give general education. Although in a particular case a minority educational institution may combine general education with religious instruction that is done in exercise of the rights derivable from Article 26(a) and Article 30(1) and not under Article 30(1) alone. Clauses H

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A (1) and (3) of Article 28, therefore, do not apply to Article 30(1). [794-G; 795-A-CJ

St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr., I1975) l SCR 173, referred to. B 3.11. There is nothing in the speeches of the Constituent Assembly which shows an intention on the part of the Constituent Assembly to abridge in any way the special protection afforded to minorities under Article 30(1). 1796-G]

F The Ahmedabad St. Xaviers College Society and Anr. Etc. v. State of Gujarat and Anr., Jl975J l SCR 173, referred to.

3.13. Rights of linguistic minorities assumed special significance and support when much after independence, the imposition of a 'unifying language' led not to unity but to an assertion of differences. States were formed on linguistic basis showing the apparent paradox that allowing for and protecting differences leads to unity and integrity and enforced assimilation may lead to disaffection and unrest. The recognition of the principle of "unity in diversity" has continued to be the hall mark of the Constitution-a concept which has been further strengthened by affording further support to the protection of minorities on linguistic basis in 1956

T.M.A. PAl FOUNDATION r. STATE OF KARNATAKA 623 by way of Articles 350-A and 350-B and in 1978 by introducing clause (1- A A) in Article 30. 1797-E-GJ

Society of St. Joseph's College v. Union of India, 12002) 1 SCC 273, referred to.

S.N. Variava, J. (for himself and Ashok Bhan, J.) (Partly dissenting) F 1.1. The scheme framed in Unnikrishnan 's case cannot be considered to be a reasonable restriction and requires re-consideration and that the regulations must be minimum. The majority of our population come from the poorer section of our society. They cannot and will not be able to afford the fees which will now be fixed pursuant to the judgment. There must therefore be an attempt, not just on the part of the Government and the G State, but also by the educational institutions to ensure that students from the poorer section of society get admission. One method would be by making available scholarships or free seats. If the educational institution is willing to provide free seats then the costs of such free seats could also be partly covered by the fees which are now to be fixed. There should be H

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A no harm in the rich subsidising the poor. (802-C, D]

1.2. The concerned authorities will always be entitled to prevent by enactment or by regulations the charging of exhorbitant fees or capitation fees. The fee structure, fixed under any regulation or enactment, will have_ to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats. (802-E-G]

1.3. An educational institution must grant admission on some identifiable and acceptable manner. It is only in exceptional cases, that the management may refuse admission to a student. However such refusal must not be whimsical or for extraneous reasons meaning thereby that the re3fusal must be based on some cogent and justifiable reasons. (802-H; 803-A]

2. EducationJllnstitutions receiving State aid cannot claim to have complete autonomy in the matter of administration. They are bound by various statutory provisions which ·are enacted to protect the interests of the education, students and teachers. Many of the statutes were enacted long back and stood the test of time. Nobody has ever challenged the provisions of these enactments. The regulations made by the State, to a great extent, depend on the extent of the aid given to institutions including minority institutions. Statutory provisions such as labour laws and welfare legislations etc. would be applicable to minority educational institutions. The State which gives aid to educational institution including minority educational institution can impose such conditions as are necessary for the proper maintenance for the higher standards of education. (804-A, B, D, 803-BI F Kesvanananda Bharti v. State of Kerala, (1973} 4 SCC 225 and R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684, relied on.

3.1. The rights under Article 30 were created so that minorities need have no apprehension that they would not be able, either in the religious G or in the educational fields, to do what the politically powerful majority could do. Principles of equality required that the minorities be given the same rights. There never was any intention or desire to create a special or privileged class of citizens. (807-G, H; 808-CI

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3.2. Minorities have full rights to establish and administer educational institution at their own costs, but if they choose to take State aid they must then abide by the Constitutional mandate of Article 29(2) and with principles of equality and secularism. The same result follows if - principles of interpretation are applied. It is settled law that if the language of the provision, being considered, is plain and unambiguous the same must be given effect to, irrespective of the consequences that may result or arise. While interpreting provisions of a Statute, if two interpretations are possible, one which leads to no conflict between the various provisions and · another which leads to a conflict between the various provisions, then the interpretation which leads to no conflict must always be accepted. [824-D-FJ C 3.3. The framers of the Constitution unambiguously and unanimously intended that rights given under Article 30(1) could be fully enjoyed so long as the educational institutions were established and administered at their own costs and expense. Once State aid was taken, then principles of equality and secularism, on which our Constitution is based, were to prevail and admission could not be denied to any student on grounds of religion, race~ caste, language or any of them. [824-F..Gl

3.4. Plain reading of Article 29(2) shows that it applies to "any educational institution" maintained by the State or receiving aid out of State funds. The words ''any educational institution" takes within its ambit an educational institution established under Article 30(1). It is to be remembered that when Article 29(2) (i.e. Article 23(2)] was framed it was part of the same Article which contained what is now Article 30(1). Thus it was clearly meant to apply to Article 30(1) as well. Article 30 nowhere provides that the provisions of Article 29(2) would not apply to it. Article F 30(1) does not exclude the applicability of the provisions of Article 29 (2) to educational institutions established under it. A plain reading of the two Articles indicates that the rights given under Article 30(1) can be fully exercised so long as no aid is taken from the State. It is for this reason that Article 30 does not make it compulsory for a minority educational institution to take aid or for the State to give it. All that Article 30(2) G provides is that the State in granting aid to educational institutions shall not discriminate against any educational institution on the ground that it is under the management of a minority. In cases where the State gives aid to educational institutions the State would be bound by the Constitutional mandate of Article 29(2) to ensure that no citizen is denied H

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A admission into the educational institution on grounds of religion, race, caste, language or any of them. By so insisting the State would not be discriminating against a minority educational institution. It would only be performing the obligation cast upon it by the Constitution of India. 1824-H; 825-A-D)

B 3.5. Article 30(2) merely provides that the State shall not discriminate on the ground that it is under the management 'lf a minority. Article 30(2) does not provide that State shall not in granting aid impose any condition which would restrict or abridge the rights guaranteed under Article 30(1). The framers were aware that when State aid was taken the principles of C equality and secularism, which are the basis of our Constitution, would have t~ prevail. The framers of the Constitution considered the principle of equality and secularism to be more important than the rights under Article 30(1). Thus in Article 30(2) it was advisedly not provided that rights under Article 30(1) could not be restricted or abridged whilst granting aid. A plain reading of Article 30(2) shows that the framers of the D Constitution envisaged that certain rights would get restricted and/or abridged when a minority educational institute chose to receive aid. It must also be noted that when property rights were deleted [by deletion of Article 19(1)(t)] the framers ofthe Constitution realised that rights under Article 30(1) would get restricted or abridged unless specifically protected. Thus E Article 30(1A) was introduced. Article 30(1A), unlike Article 30(2), specific~lly provides the acquisition of property of a minority educational institute must be in a manner which does not restrict or abrogate the rights under Article 30(1). When the framers so intended they have specifically so provided. 1825-E-H; 826-A]

F 3.6. Article 15(1) prohibits the State from discriminating against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. If the State were to give aid to a minority educational institution which only admits students of its community then it would be discr4m~nating against other citizens. who cannot get admission to such institutions. Such an interpretation would also lead to clash between Article G 30 and Article 28(3). There may be a religious minority educational institute set up to teach th.eir own religion. Such an institute may, if it is unaided, only admit students who are willing to say their prayers. Yet once aid is taken such an institution cannot compel any student to take part in . religious instructions unless the student or his parent consents. If Article H 30(1) were to be read in a manner which permits State aided minority educational institutions to admit students as per their choice, then they could refuse to admit students who do not agree to take part in religious instructions. The prohibition prescribed in Article 28(2) could then be rendered superfluous and/or nugatory. Apart from rendering Article 28(2) nugatory such an interpretation would set up a very dangerous trend. All minority educational institutions would then refuse to admit students who do not agree to take part in religious instructions. 1826-G, H; 827-A-, B)

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3. 7. All citizens have a fundamental right to establish and carry on an educ.ational institution under Article l9(1)(g). An educational institution can also be established and maintained under Article 26(a). An educational institution could also be established under Article 29(1) for purposes of conserving a distinct language, script or culture. All such educational institutions would be governed by Article 29(2). Thus if a religious educational institution is established under Article 26(a) it would on receipt of State aid have to comply with Article 29(2). Similarly an educational institute established for conserving a distinct language, script or culture would, if it receives State aid, have to comply with Article 29(2). It would be anomalous to say that an educational institute set up to teach religion or to conserve a distinct language, script or culture has to comply with Article 29(2) but an educational institute set up to give general secular education does not have to comply with Article 29(2). Article 30 was not framed to create a special or privileged class of citizens. It was framed only for purposes of ensuring that the politically powerful majority did not prevent the minority from having their educational institutes. Article 30(1) cannot be given a meaning which would result in making the minorities, whether religious or linguistic, a special or privileged class of citizens. It should be given a meaning which would further the basic and overriding principles of our Constitution viz. equality and secularism. The F interpretation must not be one which would create a further divide between citizen and citizen. [827-E-H; 828-A·C)

3.8. From any point of view i.e. historical or contextual or on principles of pure interpretation or on principles of"stare decisis" the only interpretation possible is that the rights under Article 30(1) are conferred G on minorities to establish and administer educational institutions of their choice at their own cost. This right is a special right which is given by , way of protection so that the majority, which is politically powerful, does not prevent the minorities·from establishing their educational institutions. [847-EJ H

p. 628 Copy page pinpoint

A 3.9. Article 30 merely protects the right of the minority to establish and administer an educational institution, i.e. to have the same rights as those enjoyed by majority. Article 30 gives no right to receive State aid. It is for the institution to decide whether it wants to receive aid. If it decides to take State aid then Article 30(2) merely provides that the State will not B discriminate against it. When State, whilst giving aid, asks the minority educational institute to comply with a constitutional mandate, it can hardly be said that the State is discriminating against that institute. The State is bound to ensure that all educational institutes, whether majority or minority, comply with the constitutional mandate. (829-A-C) ·

C 3.10. It would be paradoxical to hold that the rights under Article 30(1) are_ subject to municipal and other laws, but that they are not subject _to the constitutional mandate under Article 29(2). It would be paradoxical to hold that Article 30(1) is subject to Article 28(3) but not"to Article 29(2). · When Article 29(2),was introduced it was part of the same Article (viz. Article 23) which also included what is now Article 30(1). The only 0 interplay between Articles 29(2) and 30(1) is that once State aid is taken, then students of all communities must be admitted. Reserving seats for students of one's own community would in effect be refusing admission on grounds of religion, race, caste or creed. As there is no conflict the question of balancing rights under Article 30(1) and Article 29(2) of the E Constitution does not arise. 1848-F-H; 849-B, CJ

San Antonio Independent School District v. Demetrio P. Rudriguez, (4~1 US 1), referred to.

3!.tt. Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since F reorganization of th.e States in lndJa has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise. [849-E, F]

G 3.12. 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. (850-C]

3.13. Admission of students to unaided minority educational H institutions, viz., Schools where scope for merit based selection is practically nil, cannot be regulated by the State or the University (except for providing the qualifications and minimum conditions of eligibHity in the interest of academic standards). Right to admit students being an essential facet of ri~ht to administer educational institutions of their choice, as contemplated under Article 30 of the Constituti~n, the State Government or the University may not be entitled to interfere with that right in respect of unaided minority institutions provided however that the admission to the unaided educational institutions is on transparent basis and merit is the criteria. The right to administer, not being an absolute one, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof and it is more so, in the matter of admissions to undergraduate Colleges and professional institutions. The moment aid is received or taken by a minority educational institution it would be governed by Article 29(2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. Observance of inter se merit amongst the applicants must be ensured. In the case of aided professional institutions, it can also be ~ stipulated .that passing of common entrance test held by the State agency is necessary to seek admission. [850-E-H; 851-A]

p. 629 Copy page pinpoint

3.14. A minority institution may have its own procedure and method of admission as well as selection of students, but such procedure must be fair and transparent and selection of students in professional and higher educational colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to mal-administration. Even an unaided minority institution, ought not to ignore 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. {851-C, D) F 3.15. Whilst giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basisofwhich admission will be granted to different aided colleges by virtue of merit~ coupled with the reservation policy of the State. In the case of such institutions, it will be permissible G for the Government or the University to provide that consideration should • be shown to the weaker sections of the society. [851-E-Hl

3.16. So far as the statutory provisions ·regulating the facets of administration is concerned, in case of an U;Daided minority educational institution, the regulatory measure of control should be minimal and the H

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A conditions of recognition as well as conditions of affiliation to an 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. 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. D [852-C, D, F-H]

3.17. The ratio laid down in St. Stephen's College case is not correct. Once State aid is taken and Article 29(2) comes into play, then no question arises of trying to balance Articles 29{2) and 30(1). Article 29(2) must be E given its full effect. [853-F)

3.~8. 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. F Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteerir.g. (853-H; 854-A]

3. 19. The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The G expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove. (854-C, D)

3.20. The right to establish and administer educational institutions._ is guaranteed under the Constitution to all citizens under Articles 19(1 )(g) and 26, and to minorities specifically under Article 30. But this right will be subject to the provisions of Articles 19(6) and 26(a). However, minority

T.M.A. PAl FOUNDATIO~ v. STATE OF KARNATAKA 631 institutions will have a right to admit students belonging to the minority group, in the manner as discussed hereinabove. [854-E]

Unnikrishnan J.P. v. State ofA.P., {1993] I SCC 645, partly overruled.

State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525; The State of Bombay v. Bombay Education Society and Ors., [1955] I SCC B 568 andRe : The Kerala Education Bill, [1957-19591 SCR 995, relied on.

Rev. Sidhajbhai Sabhai v. State of Bombay, [1963] 3 SCR 837, distinguished. Rev. Father W. ?roost v. State of Bihar, [1969] 2 SCR 73; D.A. V. College v. State of Punjab, [1971) Supp. SCR 688; Gandhi Faizeam College C v. Agra University, [1975] 3 SCR 810; Ahmedabad St. Xaviers College and Anr. etc., v. State of Gujarat and Anr.; 11975] 1 SCR 173 and St. Stephen's College v. University of Delhi, [1992] 1 SCC 558, overruled. Rev. Bishop S.K. Patro v. State of Bihar, [1970] 1 SCR 172; State of Kerala v. Very Rev. Mother Provincial, [1971]1 SCR 734 and D.A. V. College D v. Punjab, [1971] Supp. SCR 677, rderred to.

4. In interpreting the provisions of a Statute or the Constitution it is the duty of the Court to find out the legislative intent. It has been held that Constituent Assembly debates are not conclusive but that, in a Constitutional matter where the intent of the framers of the Constitution E is to be ascertained, the Court should look into the proceedings and the relevant data, including the speeches, which throw light on ascertaining the intent. In considering the nature and extent of rights conferred on minorities one must keep in mind the historical background and see how and for what purpose Article 30 was framed. [805-B, C) F Keshavananda Bharati v. State of"' Kera/a, [1973] 4 SCC 225, followed.

R.S. Nayak v. A.R. Antu/ay, AIR (1984) SC 684, relied on.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 317 of

(Under Artde 32 of the Constitution of India)

WITH

Writ Petition (Civil) Nos. 252/79, 54-57, 2228/81, 2460, 2582, 2583- H

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A 84, 3362, 3517, 3602, 3603, 3634, 3635, 3636, 8398, 8391, 5621, 5035, 3701, 3702, 3703, 3704, 3715, 3728, 4648, 4649, 2479, 2480, 2547, 3475/ 82, 7610, 4810, 9839, 9683-84/83, 12622-24/84, 119, 133/87, 620/89, 133/ 92, 746, 327, 350, 613, 597, 536, 626, 444, 417; 523, 474, 485, 484, 355, 525,469, 392, 629, 399, 531, 603, 702, 628, 663, 284, 555, 343, 596,407, B 737, 7~8, 747, 479, 610, 627, 685, 706, 726, 598, 482, 571/93, 295, 764, D. No: 1741194, W.P. Nos. 331 , 446, 447/95, 364,435/96, 456, 454,447, 485/ 97,356,357, 328/98, 199,294,279,35, 181,373,487,23/99,561 of2000, 6, 132 of2002, Civil Appeal Nos. 1236-1241, 2392/77,687/76,3179,3180, 3181' 3182, 1521-56, 3042-91/79,2929-31' 1464/80, 2271' 2443-46/81, 4020, 290, 10766/83,5042,5043/89,6147,5381/90, 71, 72, 73/91, 1890-91,2414, c 2625/92, 4695-4746, 4754-4866/93, 5543-5544/94, 8098-8100, 1.1321/95, 4654-4658/97, 608, 3543, 3584-3585/98, 5053-5054 of 2000, 5647, 5648- 5649, 5650, 5651, 5652, 5653-5654, 5655, 5656/2001,2334/2002, S.L.P. (C) Nos. 9950, 9951/79, 11526, 863/80, 12408/85, 8884/86, 12320/87, 14437, 18061-62/93, 904-05, 11620/94, 23421 /95,4372/96, 103~0, 10664/97, 1216, D 9779-9786,6472-6474, 9793/98,5101,4480,4486/2002 T.C. (Civil) No. 26/ 90 and T.P. (Civil) Nos. 1013-14 of 1993.

Harish N. Salve, Solicitor General, K.N. Raval, Additional Solicitor General, K.K. Venugopal, B. Sen, H.W. Dhabe, Soli J. Sorabjee, P.P. Rao, · Mahinder Anand, Anoop G. Chaudhary, Rakesh K. Dwivedi, Dinesh Dwivedi, E Ms. K. Amareswari, F.S. Nariman, Dr. Rajeev Dhavan, Kapil Sibal, Sushil Kumar, Indira Jaisingh, Ashok Grover, Anil B. Divan, G.L. Sanghi, K. Parasaran, K. Rajendra Choudhury, Habibulla Basha, Dipankar P. Gupta, V.A. Mohta, T.R. Andhyarujina, Shanti Bhushan, Salman Khurshid, K.C. Kaushik, Preetesh Kapur, Ms. Aparjita Singh, Ms. Meenakshi Sakhardande, Ms. Gayatri Goswami, Siddhartha Chowdhary, R.N. Poddar, B.K. Prasad, C. F Radhakrishna, B.V. Balram Das, K.V. Vishwanathan, Ms. Revathy Raghavan, Ms. Seema Bengani, Ajeet, Haripriya Padmanabhan, Ms. Diviya Kapur, S.C. Mishra, Adv. Gent. U.P., Ajay K. Agarwal, Ravi P. Mehrotra, Arivind Verma, C. Siddharth, Mahesh Chandra, Ms. Alka Agrawal, Ms. Anamika Agrawal, Rajeev Sharma, Aarohi Bhalla, Garvesh Kabra, A.N. Jayaram Adv. Genl., Karnataka, Sanjay R Hegde, Satya Mitra, R. Anand Pamanabhan, K.R. G Sasiprabhu, John Mahtew, R.B. Madoodkar, V.N. Raghupathy, S.S. Shinde, A. Mariarputham, Ms. Aruna Mathur, G. Balaji, Ashok Kumar Pandey, Lokesh Kumar, R.S. Suri~ Jai Prakash Dhanda, Ms. Raj Rani Dhanda, K.P.Singh, Sunder Khatri, Satish K. Agnihotri, Sakesh Kumar, Prakash Shrivastava, R.M. Sharma, Ranji Thomas, Ms. Bharati Upadhyaya, Javed M. Rao, Ms. Niranjana ., H Singh, Abhishek Chaudhary, Saket Singh, B.B. Singh, Ajay K. Agrawal,

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Jatinder Kumar Bhatia, Ms. K. Madhavi Latha, A. Raghuvir, K. Subbarao, A ·.. T.V. Ratnam, Rajesh Pathak, Ashok Mathur, K.C. Kaushik, D.S. Mahra, Manish Singhvi, S.C. Shanna, Dr. Roxna Swamy, A. Lodo, B. Subbayya Shetty, Bharat Sangal, R.N. Keswani, Amitesh Kumar, Lakshmi Raman Singh, Vivek Singh, Mohd. Taiyab Khan, Imran Qaisar, Adolf Mathew, C. Mastan Naidu, Ms. Indu Malhotra, Ms. Pooja, K.V. Mohan, S. Ravindra Bhat, B Naveen R. Nath, Ms. Anupama Grover, Rakesh K. Sharma, Siddharth Dave, Brijesh Kalappa, P.R. Ramasesh, P.P. Singh, H.K. Puri, R. Jagannath Goulay, M.K. Dua, Makarand D Adkar, B.E. Ahvad, S.D. Singh, Ejaz Maqbool, A. T.M. Sampath, V. Balaji, Naresh Kaushik, S.C. Gupta, N.K. Roy, Rajesh Singh, Madhu N. Naik, Ms. Madhu Sudan Naik, Ms. Shilpa Chohan, Ms. Lalita Kaushik, B. Partha Sarthy, K.L. Shastry, Attar Singh, Kurshid Ahmed, E. M.S. C Anam, Fazlin Anam, P.H. Parekh, E.R. Kumar, Krishna Srinivasan, Sanjiv Sen, Atul Chitale, Ms. Suchitra Atul Chitale, Lalita Kohli, Manoj Swarup, Ms. Maulini Swarup, A. Mariarputham, Parmanand Gaur, S.N. Bhat, Ms. V.D. Khanna, Ms. Manik Karanjawala, Ms. Varuna B Gugnani, Ms. Binu Tamta, S. Udaya Kumar Sagar, Prateek Jalan, P.C. Shanna, Ms. Asha Nayar, N.P. D Agarwalla, Pavan Kumar, Ms. P. Niroop, Subhash Sharma, Shambhunath ~ Singh, N.R. Choudhary, S. John Chandraraj, Pradeep Tiwary, S. Uppal, Ilyas Ali, V. Balachandran, P. Narasimhan, E.C. Agrawala, Rishi Agarwal, Mahesh Agarwal, Alok Agarwal, Manu Krishnan, Dr. Jose P. Verghese, S.P. Shanna, C. Mastan Naidu, Sanjay Jain, O.C. Mathur, Ms. Meera Mathur, B.A. Ranganadhan, Ashish Sharma, Shri Narain, Sandeep Narain, Ms. Anjali, E Krishan Mahajan, Ms. Chandra Shushan Prasad, Ruchira Gupta, Ms. Gurvinder Suri, Jagjit Singh Chhabra, Rajeev Merkhedkar, Ms. Madhur, C. Badri Nath Babu, Bimal Roy Jad, C.M. Angodi, S. Nanda Kumar, V. Vijayan, L.K. Pandey, Rohit Mammen Alex, M. Veerappa, Prem Malhotra, lndeevar Goodwill, Tara Chandra Shanna, K.R. Nagaraja, Raj Kumar Mehta, Ms. Kiran Suri, Ms. Bina Gupta, Rajeev Kumar Shanna, 8.8. Singh, Ms. Rani Chhabra, F Ravindra Kumar, A. V. Rangam, A.S. Bhasme, MJ. Paul, Ms. Rachana Joshi Issar, Shivaji M Jadhav, M.K. Dua, E.C. Vidya Sagar, H.S. Parihar, Umesh Bhagwat, S.K. Mehta, Syed Ali Ahmad, Tanweer Ahmad, Mohan Pandey, G.K. Bansal, Chander Shekhar Ashri, Shiva Pujan Singh, R.C. Venna, S. Muralidhar, B. Partha Sarthy, H.A. Raichura, M.T. George, K.S. Bhati, S.V. Deshpande, G Rathin Das, Ms. B. Sunita Rao, Ms. Lily Isabel Thomas, Krishnamurthi Swami, N. Ganpathy, Mahabir Singh, Rakesh K. Shanna, Bhargava V. Desai, Sanjeev Kr. Singh, Ms. Vanita Mehta, Ms. Pratibha M. Singh, Ms. Kavita Wadia, R.D. Upadhyay, Rudreshwar Singh, Tapesh Kr. Singh, Shishir Pinaki, Prabhat Kr. Singh, Aneesh Ahmed, R.P. Wadhwani, Anand Nandan, Alok Kumar, T.V. Ratnam, M.P. Jha, J. Nagar. Arvind Varma, Ms. Sumita Mukherjee, Vishwajit H

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A Singh, Prashant Kumar, T. Raja, Anil Kumar Tandale, P.K. Manohar, M.K.D. Namboodiri, Ms. Baby Krishnan, Ms. Anu Mehta, V.K. Sidharthan, Deba Prasad Mukherjee, Sudhir Nandrajog, Nikhil Nayyar, Ms. Bina Madhavan, P. Prasanth, S.U.K.. Sagar, Ms. J. Godbole, Naveen Prakash, Rahul Singh, Rana Mukherjee, Ms. Indira Sawhney, Sanjay Sen, Sushil Kumar Jain, Pradeep Aggarwal, A.P. Dhamija, A. Mishra, Ms. Anjali Doshi, Ms. Ruchi Kohli, L.P. B Singh, Ms. Pratibha Jain, O.K. Jain, Bhagchand Jain, A.P. Jain, Sanjay Kr. Pathak, Ms. Deepti Jain, Hemant S. Jain, R.C. Papriwal, J.M. Khanna, T.N. Bhat, Ms. Shefali Khanna, B.K. Punj, Subhash Chandra Jain, Ms. S.K. Mehta, Ms. Annapoorani, V.G. Pragasam, Ms. Chandan Ramamurthi, Ms. Lalit Mohini Bhat, Sudrash Menon, Ambrish Kumar, Ugra Shankar Prasad, D.N. Gupta, C Rakesh K. Sharma, Ms. Janaki Ramachandran, S.C. Sharma, Dr. M.P. Raju, lsaae Mohanlal, Pravir Chaudhary, Senthil Jagadeesan, V. Ramasubramnian, Ms. Madhu Sikri, K.R. Nambiar, Subhash C. Sharma, S.W. Kanagaraj, T.M. Reddy, Sudarsh Menon, R. Nedumaran, K.K. Mani, R. Ayyam Perumal, S. Srinivasan, S.R. Setia, S. John Chandraraj, Dr. A. Francis Julian, Sumit Kumar, M.A. Chinnasamy, Pradeep Tiwary, K. Swami, K. Ilias Ali, Suren Kumar D Uppal, Dr. R. Prakash, R.N. Reshwani, Ram Lal Roy, Dr. O.K. Jain, Zaki Ahmad Khan, Imtiaz Ahmed, Ms. Naghma Imtiaz, Anis Suhrawardy, Dr. Nafis . A. Siddiqui, Anis Ahmed Khan, M. Qamaruddin, Ms. M. Qamaruddin, Ambar Qamaruddin, Manish Goswami, Pratap C. Mahapatra, J.M. Khanna, Shakil Ahmed Syed, Ms. S. Subhashini, S.K. Puri, Rajesh Srivastava, Uljwal Banerjee, E Ms. Anandita Gupta, Vivek Gambhir, P.N. Jha, B.K. Pal, A.K. Sanghi, Sardar Ajit Singh, Badar D. Ahmad, Ms. Sunanda Roy, Jayant Tripathi, Vivek N. Sharma, Pramod Swarup, Praveen Swarup, Ms. Pareena Swarup, Amit Singh Rathi, Vishal Gupta, Dr. Anil Kumar Mittal, Prashant Bhushan, Bijan Kumar Ghosh, Ms. Purnima Bhat, M.M. Kashyap, U.A. Rana, M.J.S. Rupal, Lakshman, R.B. Masoodkar, Uday Gupta, M.N. Shroff, N. Ganapathy, Ashok F K. Mahajan, Ms. Meenakshi Arora, G. Umapathy, S. Jayakumar, Shailendra Bhardwaj, Rakesh K. Sharma, Ms. Anupama Grover and Ms. Nanita Sharma, for the appearing parties.