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

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A management, of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.

56. An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no ~ecret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution: One cannot Jose sight of the fact that providing good amenities to the students in the fonn of competent teaching · faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.

57. We, however, wish to emphasize one point, and that is that 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 profiteering by the institution. Since the object of setting up an educational institution is by · definitioll "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an edu'Cational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution. G

58. For admission into any professional institution, merit must play an important role. While it may not be nonnally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to . a professional institution and to becorrle a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a H disadvantage by preferences shown to less meritorious but more influential

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applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.

59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.

60. Education is taught at different levels from primary to professional. C It is, therefore, obvious that government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-a-vis aided institutions.

61. In the case of unaided private schools, maximum autonomy has to D be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admissions on the basis of merit. It is no secret that the examination r~sults at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government- E maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in ·· such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But F by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering ·of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up G institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. [t is in the interest of the general public that more good quality schools are established; autonomy and non-regulation of the schoo I administration. in the right of appointment, admission of the students and the fee to be charged will ensure that more H

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A such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded. one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations.

B 62. There is a need for private enterprise in non-professional college education as well. At present, insufficient number of undergraduate colleges are being ·and have been established, one of the inhibiting factors being that there is a Jack of autonomy due to government regulations. It will not be wrong to. _presume tha~ the numbers of professional colleges are growing at C a faster rate than the number of undergraduate and non-professional colleges. While it. is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.

D 63. It was submitted that for maintaining the excellence of education, it w2s important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary E action i~ sought to be taken in relation to su.::h misconduct, the rules that are nonnally framed by the government or the university.are clearly loaded against the Management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the initiation of the disciplinary proceeding, while in other cases, subsequent permission is required p before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the Management in the event of some punishment being imposed, it was submitted that there should be no role for the government or the university to play in relation to the imposition of any penalty on the employee. G

64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster-parents who are required H to look after, cultivate and guide the students in their pursuit of education.

TM.A. PAl FOUNDATION v. STATEOFKARNATAKA (KIRPAL, CJ.J 657 The teachers and the institution exist for the students and not vice versa. A Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. ln the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State - the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It wilt not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the Management concerning disciplinary action or termination of service.

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A 65. The. reputation of an educational institution is established by the quality of its! faculty and students, and the educational and other facilities that the college.has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the stud'ents who can be. admitted to their courses of studies.- It is for this reason that in the St. Stephen's College case, this Court upheld the scheme whereby a cut- off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their p((rfonnance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have othe~ise qualified for the grant of admission must be left with the educational institution concerned. However, when th·~ institution rejects such students, such rejection must not be whimsical or for extraneous reasons.

66. ·In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to ' academic and educational matters and welfare of students and teachers • but how the private unaided institutions are to run is a matter of administration to be taken care of by the Management of those institutions.

F Private Unaided Professional Colleges 6?., We now come to the regulations that can be framed relating to private unaided professional institutions.

68: It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the prindiple 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

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time, giving the Management sufficient discretion in admitting students. This A can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be tilled up on the basis of counselling by the B state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and· non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post graduation non- C professional colleges or institutes.

69Copy pinpoint69. In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, D which would not be entitled to charge a capitation fee. Appropriate machinery can be devist!d by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the E welfare of students and teachers.

70Copy pinpoint70. It is well established all over the world that those who seek professional education must pay for it. The number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. F All those eligible and deserving candidates who could not be accommodated in government colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by public-minded individuals. The object of establishing an institution has thus been to provide technical or professional G education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authority or the body that conducts the school-leaving examination. It is only on the basis of that examination that a school-leaving H

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

A certificate is granted, which enables a student to seek admission in further courses of study after school. A college or a professional educational institution has to get recognition from the concerned university, which normally requires certain conditions to be fulfilled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and B educational character of the institution and ensure 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.

Private' Aided Professional institutions (non-minority) c

71Copy pinpoint71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basi.s of which admission will be granted to different aided col1eges by virtue of merit, coupled with the reservation policy of the state. The merit may be determined either through a common entrance test conducted by the 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 also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. ln 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.

72Copy pinpoint72. Once 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 maintenance of the high standards' of education as the financial burden is shared by the state. The state would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many states, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The state, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.} 661

same. Ever since In Re The Kerala Education Bill, 1957 [1959] SCR 995, A this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent mal- administration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a government-owned and contro11ed institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the Management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain 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 institution and interfere with Constitution of the governing bodies or thrusting the staff D -' without reference to Management. Other Aided Institutions

73Copy pinpoint73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the state. Although these institutions may have been established by philanthropists or other public-spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the state. In such cases, as those of the professional aided institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution. G

4. IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR UNGUISTIC MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT- THE STATE OR THE COUNTRY AS A WHOLE?

74Copy pinpoint74. We now consider the question of the unit for the purpose of H

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A detennining the definition of "minority" within the meaning of Article 30( 1).

75Copy pinpoint75. Article 30(1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put at par, ·insofar as that Article is concerned. Therefore, whatever the unit - whether a state or the whole of India - for determining B a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic states. The states have been carved out on the basis of the language of the majority of persons of that region. For example, Andhra Pradesh was established on the basis of the language of that region, viz., Telugu. "Linguistic minority" can, therefore, logically only be in C relation to a particular State. If the determination of "linguistic minority" for the purpose of Article 30 is to be in relation to the whole oflndia, then within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a "linguistic minority". This will clearly be contrary to the concept of linguistic states.

76Copy pinpoint76. If, therefore, 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.

77Copy pinpoint77. In the Kerala Education Bill case, the question as to whether the minority community was to be determined on the basis of the entire population of India, or on the basis of the population of the State forming a part of the Union was posed at page 1047. It had been contended by the State of Kerala that for claiming the status of minority, the persons must numerically be a minority in the particular region in which the educational institution was situated;· and that the locality or ward or town where the institution was to be situated had to be taken as the unit to determine the minority community. No final opinion on this question was expressed, but it was observed at page 1050 that as the Kerala Education Bill "extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State. " G

78Copy pinpoint78. In two cases· pertaining to the DA V College, this Court had to consider whether the Hindus were a religious minority in the State of Punjab. In D.A. V. College v. State of Punjab and Ors., [1971] (Supp.) SCR 688, the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined. After examining the opinion of this Court H in the Kerala Education .Bill case, the Court held that the Arya Samajis, who

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were Hindus, were a religious minority in the State of Punjab, even though A they may not have been so in relation to the entire country. In another case, D.A.V. College Bhatinda v. State of Punjab and Ors., [1971] (Supp.) SCR 677, the observations in the first D.A.V. College case were explained, and at page 681, it was stated that ''what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act was B a State Act and not in relation to the whole of India. " The Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the state of Punjab, as it took the state as the unit to determine whether the Hindus were a minority community.

79Copy pinpoint79. There can, therefore, be little doubtthat this Court has consistently C held that, with regard to a state law, the unit to determine a religious or · linguistic minority can only be the state.

80Copy pinpoint80. The Forty-Second Amendment to the Constitution included education in the Concurrent List under Entry 25. Would this in any way change the position with regard to the determination of a "religious" or D "linguistic minority" for the purposes of A11icle 30?

81Copy pinpoint81. As a result of the insertion of Entry 25 into List III~ Parliament can now legislate in relation to education, which was only a state subject previously. The jurisdiction of the Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not violative of Article 14. It would, therefore, be possible that, with respect to a particular State or group of States, Parliament may legislate in relation to education. However, Article 30 gives the right to a linguistic or religious minority of a State to establish and administer educational institutions of their choice. 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: G

5. TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY INSTITUTIONS TO ADMINISTER BE REGULATED?

82Copy pinpoint82. Article 25 gives to all persons the freedom of conscience and the right to freely profess, practice and propagate religion. This right, however, . H

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A is not abSolute. The opening words of Article 25( 1) make this right subjeer to pub Iic order, morality and health, and also to the other provisions of Part . III of the Constitution. This would mean that the right given to a person under 25(1) can be curtailed or regulated if the exercise of that right would violate other provisions of Part Ill of the Constitution, or if the exercise thereof is not in consonance with public order, morality and health. The general law made by the government contains provisions relating to public order, morality and health; these would have to be complied with, and cannot be violated by any person in exercise of his freedom of conscience or his freedom to profess, practice and propagate religion. For example, a person cannot propagate his.religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people.

83Copy pinpoint83. Article 25(2) gives specific power to the state to make any law regulating or restricting any economic, financial, political or other secula~ activity, which may be associated with religious practice as provided by sub-: clause (a) of Article 25(2). This is a further curtailment of the right to profess, practice and propagate religion conferred on the persons under Article 25( I)'.'· Article 25(2)(a) covers only a limited area associated with religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any Jaw in relation to the religious practice as such. The limited jurisdiction granted by Article E 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice. •

84Copy pinpoint84. The freedom to manage religious affairs is provided by Article 26. This Article gives the right to every religious denomination, or any section thereof, to exercise the rights that it stipulates. However, this right has to be p exercised in a manner that is in conformity with public order, morality and health. Clause (a) of Article 26 gives a religious denomination the right to establish and maintain institutions for religious and charitable purposes. There is no dispute that the establishment of an educational institution comes within the meaning of the expression "charitable purpose". Therefore, while Ar1icl~ 25( 1) grants the freedom of conscience and the right to profess, practice and . G propagate religion, Article 26 can be said to be complementary to it, and · provides for every religious denomination, or any section thereof, to exercise the rights mentioned therein. This is because Article 26 does not deal with the right of an individual, but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is a majority or a H minority religion, just as Article 25 refers to all persons, whether they belong

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.J 665

to the majority or a minority religion. Article 26 gives the right to majority religious denominations, as well as to minority religious denominations, to exercise the rights contained therein.

85Copy pinpoint85. Secularism being one of the important basic features of our Constitution, Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for the payment of expenses for the promotion and maintenance of any particular religion or religious denomination. The manner in which the Article has been framed does not prohibit the state from enacting a law to incur expenses for the promotion or maintenance of any particular religion or religious denomination, but specifies that by that law, no person can be compelled to pay any tax, the proceeds of which are to be so utilized. In other words, if there is a tax for the promotion or maintenance of any particular religion or religious denomination, no person can be compelled to pay any such tax.

86Copy pinpoint86. Article 28(1) prohibits any educational institution, which is wholly maintained out of state funds, to provide for religious instruction. Moral D education dissociated from any denominational doctrine is not prohibited; but, as the state is intended to be secular, an educational institution wholly maintained out of state funds cannot impart or provide for any religious instruction.

87Copy pinpoint87. The exception to Article 28(1) is contained in Article 28(2). Article E 28(2) deals with cases where, by an endowment or trust, an institution is established, and the terms of the endowment or the trust require the imparting of religious instruction, and where that institution is administered by the state. In such a case, the prohibition contained in Article 28(1) does not . apply. If the administration of such an institution is voluntarily given to the F government, or the government, for a good reason and in accordance with law, assumes or takes over the management of that institution, say on account of mal-administration, then the government, on assuming the administration ofthe institution, would be obliged to continue with the imparting of religious instruction as provided by the endowment or the trust. G

88Copy pinpoint88. While Article 28( 1) and Article 28(2) relate to institutions that are wholly maintained out of state funds, Article 28(3) deals with an educational institution that is recognized by the state or receives aid out of state funds. Article 28(3) gives the person attending any educational institution the right . not to take part in any religious instruction, which may be imparted by an Institution recognized by the state, or receiving aid from the state. Such a H

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A person also has the right not to attend any religious worship that may be conducted in such an institution, or in any premises attached thereto, unless such a person, or if he/she is a minor, his/her guardian, has given his/her consent. The reading of Article 28(3) clearly shows that no person attending an educational institution can be required 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. We have seen that Article 26(a) gives the religious denomination the right to establish an educational institution, the religious denomination being either of the majority community or minority community. In any institution, whether established by the majority or a minority religion, if religious instruction is imparted, no student can be compelled to take part in the said religious 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. In other words, in matters relating to religious instruction or worship, there can· be no compulsion where the educational institution is either recognized by the state or receives aid from the state.

89Copy pinpoint89. Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article 29(1) gives the right to any section of the citizens residing in India or any part thereof, and having a distinct language, script or culture of its own, to conserve the same. Article 29( 1) does not refer to any religion, even though the marginal note of the Article mentions the interests of minorities. Article 29( 1) essentially refers to sections of citizens who have a distinct language, script or culture, even though their religion may not be the same. The common thread that runs through Artie le 29( 1) is language, script or culture, and not religion. For example, if in any part of the country, there is a section of society that has a distinct language, they are entitled to conserve the same, even though the persons having that language may profess different religions. Article 29(1) gives the right to all sections of citizens, whether they are in a minority or the majority religions, to conserve their language, script or culture.

90Copy pinpoint90. In the exercise of this right to conserve the language, script or culture, that section of the society can set up educational institutions. The right to establish and maintain educational institutions of its choice is a necessary concomitant to the right conferred by Article 30. The right under H Article 30 is not absolute. Article 29(2) provides that, where any educational -

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institution is maintained by the state or receives aid out of state funds, no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them. The use of the expression "any educational institution" in Article 29(2) would refer to any educational institution established by anyone, but which is maintained by the state or receives aid out of state funds. In other words, on a plain reading, state-maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language.

91Copy pinpoint91. The right of the minorities to establish and administer educational institutions is provided for by Article 30(1). To some extent, Article 26(1)(a) C and Article 30( I) 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 of their choice. Another difference between D 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.

92Copy pinpoint92. Article 30( I) bestows on the minorities, whether based on religion or language, the right to establish and administer educational institution of E their choice. Unlike Articles 25 and 26, Article 30(1) does not specifically state that the right under Article 30(1) is subject to public order, morality and health or to other provisions of Part III. This sub-Article also does not specifically mention that the right to establish and administer a minority educational institution would be subject to any rules or regulations. F

93Copy pinpoint93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law? Does Article 30( 1) give the religious or linguistic minorities a right to establish an educational G institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning rules and regulations? Can they construct and maintain buildings in any H

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A manner they desire without complying with the provisions of the building by- laws or health regulations?

94Copy pinpoint94. In order to interpret Article 30 and its interplay, if any, with Article 29, our attention was drawn to the Constituent Assembly Debates. While referring to them, the learned Solicitor General submitted that the provisions of Article 29(2) were intended to be applicable to minority institutions seeking protection of Article 30. He argued that if any educational institution sought aid, it could not deny admission only on the ground of religion, race, caste or language and, consequently, giving a preference to the minority over more meritorious non-minority students was impermissible. [t is now necessary to refer to some of the decisions of this Court insofar as they interpret Articles 29 and 30, and to examine whether any creases therein need ironing out.

95Copy pinpoint95. In The State ofMadras v. Srimathi Champakam Dorairajan, [1951] SCR 525, the State had issued an order, which provided that admission to students to engineering and medical colleges in the State should be decided by the Selection Committee, strictly on the basis of the number of seats fixed for different communities. While considering the validity of this order, this Court interpreted Article 29(2) and held that if admission was refused only on the grounds of religion, race, caste, language or any of them, then there was a clear breach of the fundamental right under Article 29(2). The s~id order was construed as being violative of Article 29(2), because students who did not fall in the particular categories were to be denied admission. In this connection it was observed as follows:

" .... so far as those seats are concerned, the petitioners are denied admission into any of them, not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations were made ......"

96Copy pinpoint96. This government order was held to be violative of the Constitution and constitutive of a clear breach of Article 29(2). Article 30 did not come up for consideration in that case.

97Copy pinpoint97. In The State of Bombay v. Bombay Education Society and Ors., [1955] 1 SCR 568, the State had issued a circular, the operative portion of which directed that no primary or secondary school could, from the date of that circular admit to a class where English was used as a medium . of instruction, any pupil other than pupils belonging to a section of citizens, the language of whom was English, viz., Anglo-Indians and citizens of non-

T.M.A. PAl FOUNDATION r. STATE OF KARNATAKA [KIRPAL, CJ.] 669

Asiatic descent. The validity of the circular was challenged while admission was refused, inter alia, to a member of the Gujarati Hindu Community. A number of writ petitions were filed and the High Court allowed them. In an application filed by the State of Bombay, this Court had to consider whether the said circular was ultra vires Article 29(2). In deciding this question, the Court analyzed the provisions of Articles 29(2) and 30, and repelled the contention that Artie)~ 29(2) guaranteed the right only to the citizens of the minority group. It was observed, in this connection, at page 579, as follows:

" ......The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which Articles 29 and 30 are grouped together- namely F "Cultural and Educational Rights"- is quite general and does not in tenns contemplate such differentiation. If the fact that the institution is maint?.ined or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups; are alike entitled to the protection of this G fun damental right.. ....."

98Copy pinpoint98. It is clear from the aforesaid discussion that this Court came to the conclusion that in the case of minority educational institutions to which protection was available under Article 30, the provisions of Article 29(2) were indeed applicable. But, it may be seen that the question in the present H

p. 670 Copy page pinpoint

form i.e., whether in the matter of admissions into aided minority educational institutions, minority students could be preferred to a reasonable extent, keeping in view the special protection given under Article 30(1 ), did not arise for consideration in that case.

99Copy pinpoint99. In the Kerala Education Bill case, this Court again had the occasion to consider the interplay of Articles 29 and 30 of the Constitution. This case was a reference ulJder Article 143( 1) of the Constitution made by the President - r

of India to obtain the opinion of this Court on certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly, but had been reserved by the Governor for the consideration of the President. Clause -3(5) of the Bill, made the recognition of new schools subject to the other provisions of the Bill and the rules framed by the Government under clause (36); clause (15) authorized the Government to acquire any category of schools; clause 8(3) made it obligatory on all aided schools to hand over the fees to the Government; clauses 9 to 13 made provisions for the regulation and management of the schools, payment of salaries to teachers and the terms and conditions of their appointment, and clause (3 3) forbade the granting of temporary injunctions and interim orders in restraint of proceedings under the Act.

100Copy pinpoint100. With reference to Article 7.9(2), the Court observed at page I 055, E while dealing with an argument based on Article 337 that "likewise Article 29(2) provides, inter alia, that no citizen shall be denied admission into any educat_ional institution receiving aid out of State funds on grounds only of religion, race, caste, language or any of them". Referring to Part Ill of the Constitution and to Articles 19 and 25 to 28 in particular, the Court said:- F " ..... Under Article 25 all persons are equally entitled, subject to public , order, morality and health and to the other provisions of Part IH, to freedom of conscience and the right freely to profess, practise and propagate religion. Article 26 confers the fundamental right to every religious denomination or any section thereof, subject to public order, G morality and health, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to acquire property and to administer such property in accordance with Jaw. The ideal being to constitute India into a secular State, no religious instruction is, under Article 28(1 ), to be provided :in any educational institution wholly maintained out of State funds H

p. 671 Copy page pinpoint

and under clause (3) of the same Article no person attending any educational institution recognized by the State or receiving aid out of . State funds is to be required to take part in any religious instruction that may be imparted· in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Article 29( 1) confers on any section of the citizeriS having a distinct language, script or culture of its own to have the right of conserving the same. Clause (2) of that Article provides that no citizen sh::tll be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

l 01. Dealing with Articles 29 and 30 at page 1046, it was observed as follows:-

"Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head "Cultural and Educational Rights". The text and the marginal notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities. Under clause ( l) of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational in~titutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full. This right, however, is subject to clause 2 or Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

102Copy pinpoint102. It had been, inter alia, contended on behalf of the state that if a single member of any other community is admitted in a school established for a particular minority community, then the educational institution would cease to be an educational institution established by that particular minority H

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A community. It was contended that because of Article 29(2), when an educational institution established by a minority community gets aid, it would be precluded from denying admission to members of other communities because of Article 29(2), and that as a consequence thereof, it would cease to be an educational institution of the choice of the minority community that B established it. Repelling this argument, it was observed at pages 1051-52, as follows:-

" .. :...This argument does not appear to us to be warranted by the language of the Article itself. There is no such limitation in Article 30( 1) and to accept this limitation will necessarily involve the addition of, the words "for their own community" in the Article whirh is c ordinarily not permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Article 29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being minority educational institution must not refuse to admit any member of any other commurlity only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Article 29(2) and Article 30( t) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In· our opinion, it is not possible to read this condition into Article 30( 1) of the Constitution."

t 03. It will be seen that the use of the expression "sprinkling of outsiders" in that case clearly implied the applicability of Article 29(2) to Article 30( I); G the Court held that when a minority educational institution received aid, outsiders would have to be admitted. This part of the state's contention was accepted, but what was rejected was the contention that by taking outsiders, a minority institution would cease to be an educational institution of the choice of the minority community that established it. The Court concluded at page I06~, as follows:-

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KlRPAL, CJ.) 673 " .... We have already observed that Article 30( l) gives two rights to the minorities, (l) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching br which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided ....."

104Copy pinpoint104. While noting that Article 30 referred not only to religious minorities but also to linguistic minorities, it was held that the Article gave those minorities the right to establish educational institutions of their choice, and that no limitation could be placed on the subjects to be taught at such educational institutions and that general secular education is also comprehended within the scope of Article 30(1). It is to be noted that the argument addressed and answered in that case was whether a minority aided institution loses its character as such by admitting non-minority students in terms of Article 29(2). It was observed that the admission of 'sprinkling of outsiders' will not deprive the institution of its minority status. The opinion expressed therein does not really go counter to the ultimate view taken by us in regard to the inter~play of Articles 30( 1) and 29(2)

105Copy pinpoint105. In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., [1963] 3 SCR 837, this Court had to consider the validity of an order issued p by the Government of Bombay whereby from the academic year 1955~56, 80% of the seats in the training colleges for teachers in non-government training colleges were to be reserved for the teachers nominated by the Government. The petitioners, who belonged to the minority community, were, inter alia, running a training college for teachers, as also primary schools. The said primary schools and college were conducted for the benefit of the G religious denomination of the United Church of Northern India and Indian Christians generally, though admission was not denied to students belonging to other communities. The petitioners challenged the government order requiring 80% of the seats to be filled by nominees of the government, inter alia, on the ground that the petitioners were members of a religious H

p. 674 Copy page pinpoint

A denomination and that they constituted a religious minority, and that the educational institutions had been established primarily for the benefit of the Christian community. It was the case of the petitioners that the decision of the Government violated their fundamental rights guaranteed by Articles 30( 1), 26(a), (b), (c) and (d), and 19(1)(t) and (g). While interpreting Article 30, it B was observed by this Court at pages 849-850 as under:- " ....All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any Jaw or executive direction which seeks to infringe t~e substance of that right under Article 30( 1) would to that extent be ,void. This, however, is not to say that it is not open to the State to c impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions, it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the ,citizens, or sections thereof. Regulation made in the true interests of D efficiency of instruction, discipline, health, sanitation, morality, public o,rder and the like may undoubtedly ·be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed, they secure the proper functioning· of the institution, in matters educational."

106Copy pinpoint106. While coming to the conclusion that the right of the private training colleges .to admit students of their choice was severely restricted, this Court referred 'to the opinion in the Kerala Education Bill case, but distinguished it by observing that the Court did not, in that case, lay down any test of reasonableness of the regulation. No general principle on which the F reasonableness of a regulation may be tested was sought to be laid down in the Kerala Education Bill case and, therefore, it was held in Sidhajbhai Sabhai 's case that the opinion in that case was not an authority for the proposition that all regulative measures, which were not destructive or annihilative of the character of the institution established by the minority, provided the regulations were in the national or public interest, were valid. G In this connection it was further held at page 856, as follows:-

"The right established by Article 30 (1) is a fundamental right declared · in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to • be a real right for the protection of the minorities in the .matter of setting up of educational institutions of their own choice. The right

T.M.A. PAl FOUNDATIONv. STATE OF KARNATAKA [KIRPAL, CJ.] 675

is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30 ( 1) will be but a "teasing illusion'\ a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition mus~ be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such C regulation must satisfy a dual test- the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it." D l 07. The aforesaid decision does indicate that the right under Article 30( 1) is not so absolute as to prevent the government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai 's case, it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. It will further be seen that in Sidhajbhai Sabhai 's case, no reference was made ~o Article 29(2) of the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us.

108Copy pinpoint108. Our attention was invited to the decision in Rev. Father W. Proost and Ors. v. The State of Bihar and Ors., [1969] 2 SCR 73, but the said case H

p. 676 Copy page pinpoint

A has no a·pplication here. In that case, it was contended, on behalf of the State of Bihar, that, as the protection to the minority under Article 29( 1) was only a right to conserve a distinct language, script or culture of its own, the college did not qualify for the protection of Article 30( 1) because it was not founded to conserve them and that consequently, it was open to all sections of the people. The question, therefore, was whether the college could claim B the protection of Section 48-B of the Bihar Universities Act read with Article 30(1) of the Constitution, only if it proved that the educational institution was furthering the rights mentioned in Article 29(1). Section 48-8 of the Bihar Universities Act exempted a minority educational institution based on religion or language from the operation of some of the other provisions of that Act. C This CoU:it, while construing Article 30, held that its width could not be cut down by introducing in it considerations on which Article 29(1) was based. 1 Articles 29( 1) and 30( I) were held to create two separate rights, though it was possible that they might meet in a given case. While dealing with the contention of the state that the college would not be entitled to the protection under Article 30(1) because it was open to all sections of the people, the D Court referred to the observations in the Kerala Education Bill case, wherein it had been observed that the real import of Article 29(2) and Article 30(1) was that they contemplated a minority institution with a sprinkling of outsiders admitted into it. The Court otherwise had no occasion to deal with the applicability of Article 29(2) to Article 30( 1). · E 16'9. In State ofKerala, Etc. v. Very Rev. Mother Provincial, Etc. [1971] 1 SCR 734, the challenge was to various provisions of the Kerala University Act, 1969, whose provisions affected private colleges, particularly those founded. by minority communities in the State of Kerala. The said provisions, inter alia, sought to provide for the manner in which private colleges were to be administered through the constitution of the governing body or managing councils in the manner provided by the Act. Dealing with Article 30, it was observed at pages 739-40 as follows: • I

"Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a. single philanthropic individual With his OW~ means, founds the H 'institution or the community at large contributes the funds. The position ·

p. 677 Copy page pinpoint

in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.

The next part of the right relates to the administration of such institutions. Administration means ·•management of the affair.s' of the institution. This management must be free of control so that the founders or their nominees can mould the institution as ·they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right."

The Court, however, pointed out that an exception to the right under Article D A 30 was the power with the state to regulate education, educational standards and allied matters. It was held that the minority institutions could not be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of the exclusive right of management, allowed to decline to follow the general pattern. The Court stated that while the management must be left to the minority, they may be compelled to keep in step with others.

110Copy pinpoint110. The interplay of Article 29 and Article 30 came up for consideration again before this Court in the D. A. V. College case [1971] (Supp.) SCR 688. Some of the provisions of the Guru Nanak University Act established after the reorganization of the State of Punjab in 1969 provided for the manner in which the governing body was to be constituted; the body was to include a representative of the University and a member of the College. These and some other provisions were challenged on the ground that they were violative of Article 30. In this connection at page 695, it was observed as follows:-

"It will be observed that Article 29(1) is wider than Article 30(1 ), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religious minority as well as a linguistic H

p. 678 Copy page pinpoint

A minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive ~.

language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the B excellence of its standards. This right is further subject to clause (2) of Article 29 which provides that no citizen shall be denied admission ·into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion·, race, caste, language or any of them. While this is so these two articles are c not inter-linked nor does it penn it of their being always read tog~ther."

Though it was observed that Article 30(1) is subject to 29(2), the question whether the preference to minority students is altogether excluded, was not considered.

111Copy pinpoint111. One of the questions that arose in this case was as to whether the petitioner was a minority institution. In this case, it was also observed that A the Hindus of Punjab were a religious minority in the State of Punjab and that, therefore, they were entitled to the protection of Article 30(1). Three of the provisions, which were sought to be challenged as being violative of Article 30, were Clauses 2(1 ), 17 and 18 of the statutes framed by the E University under Section 19 of the University Act. Clause 2(l)(a) provided that, for seeking affiliation, the college was to have a governing body of not more than 20 persons approved by the Senate and including, amongst others, two representatives of the University and a member of the College. Clause 17 required the approval of the Vice-Chancellor for the staff initially appointed F by the College. The said provision also provided that all subsequent changes in the staff were to be reported to the Vice-Chancellor for his/her approval. Clause 18 provided that non-govem.ment colleges were to comply with the requirements laid down in the ordinances governing the service and conduct of teachers in non-government colleges, as may be framed by the University. After referring to Kerala Education Bill, Sidhajbai Sabhai and Rev. Father G W. Proost, this Court held that there was no justification for the provisions contained in Clause 2(1 )(a) and Clause 17 of the statutes as they interfered with the rights of management of the minority educational institutions. P. Jaganmohan Reddy, J., observed that "these provisions cannot, therefore, be made as conditions of affiliation, the non-compliance of which would {nvolve H dis-affiliation and consequently they will have to be struck down as offending

T~M.A. PM FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 679 Article 30(1)." A

112Copy pinpoint112. Clause 18, however, was held not to suffer from the same vice as Clause 17 because the provision, insofar as it was applicable to the minority institutions~ empowered the University to prescribe by-regulations governing the service~nd conduct of teachers, and that this was in the larger interest of the instituti~n.s, and in order to ensure their efficiency and excellence. In this connection;· it was observed at page 709, that: -

"Uniformity in the conditions of service and conduct of teachers in all non-Government Colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of t:he matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30(1) will depend on the :actual purpose and import of the or4inance when made and the man-ner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicate."

113Copy pinpoint113. In The Ahmedabad St. Xaviers College Society and Anr. Etc. v . D ... State of Gujarat and Anr., [1975] 1 SCR 173, this Court had to consider the constitutioh~l validity of\certain provisions of the Gujarat University Act, 1949, insofar as they were made to apply to the minority Christian institution. The impugned provisions, inter alia, provided that the University may determine that all instructions, teaching and training in courses of studies, in respect of which the University was competent to hold examinations, would be conducted by the U~iversity and would be imparted by the teachers of the University. Another provision. provided that new colleges that may .seek affiliation, were to be the c·onstituent colleges of the University. The Court considered th.e scope and ambit of the rights of the minorities, whether based on religion· or language, to· establish and administer educational institutions of their choice· under Article 30(1) of the Constitution. In dealing with this aspect, Ray, C.J ., at page 192, while considering Articles 25 to 30, observed as follows:-

"Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, cult~re as contemplated in Article · 29. The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority • and the minority. If the minorities do not have such special protection they will be denied equality." H

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114Copy pinpoint114. Elaborating on the meaning and intent of Article 30, the learned Chief Justice further observed as follows:-

"The real reason embodied in Article 30( I) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering B educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrit.Y and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in c the true spirit of liberty, equality and fraternity through the medium ., of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational ' '

institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural D light ,, of mind for our countrymen to live in the whole." ~ .

liS. The Court then considered whether the religious and linguistic minorities, who have the right to establish and administer educational institutions of their choice, had a fundamental right to affiliation. Recognizing that the affiliation to a University consisted of two parts, the first part relating . E to syllabi, curricula, courses of instruction, the qualifications of teachers, library, laboratories, conditions regarding health and hygiene of students (aspects relating to establishment of educational institutions), and the second part ccinsist~ng of terms and conditions regarding the management of institutions, it was held that with regard to affiliation, a minority institution must follow the statutory measures regulating educational standards and efficiency, prescribed courses of study, courses of instruction, the principles regarding the qualification of teachers, educational qualifications for entry of students into educational institutions, etc.

116Copy pinpoint116. While considering the right of the religious and linguistic minorities to administer their educational institutions, it was observed by Ray, C.J., at page 194, as follows:- '

." ......The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said ·• that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by

p. 681 Copy page pinpoint

them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution." '

117Copy pinpoint117. While considering this right to administer, it was held that the same was not an absolute right and that the right was not free from regulation. While referring to the observations of Das, C.J., in the Kerala Education Bill C case, it was. reiterated in the St. Xaviers College case that the right to administer was not a right to mal-administer. Elaborating the minority's right to administer at page 196, it was observed as follows:-

" .....The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclecticism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character."

118Copy pinpoint118. Ray, C.J., concluded by observing at page 200, as follows:- F "The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education. G In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, H

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A as part of it, a correlative duty of good administration."

119Copy pinpoint119. In a concurrent judgment, while noting that "c/ause.(2) of Article 29 forbids the denial ofadmission to citizens into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of then", Khanna, J. then examined B Article 30, and observed at page 222, as follows:-

"Clause (I) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analyzing that clause it would follow that the right which has been conferred by the clause is on two types of c minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word "establish" indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of · how the interest of the community in general and the institution in particular ;Will be best served. The words "of their choice" qualify the educational institutions and show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the institution is under the management of a minority whether based on religion or language.

120Copy pinpoint120. Explaining the rationale behind Article 30, it was observed at page 224, as foliows:- G "The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the ;doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [KIRPAL, CJ.) 683

designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may pot be reduced to a B mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact."

121Copy pinpoint121. While advocating that provisions of the Constitution should be construed according to the liberal, generous and sympathetic approach, and c after.. considering the principles which could be discerned by him from the earlier decisions of this Court, Khanna, J., observed at page 234, as follows:-

" .....The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of D security, of a consciousness of equality and Qf the awareness that the conservation of their religion, culture, ·language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution- E makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The F Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression." G

122Copy pinpoint122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to mal- administer, it was held that regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain H

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· .· A its character as a minority institution. The regulation "must satisfy a dual test -the test ofreasonab/eness, and the test that it is regulative ofthe educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. " It was pennissible for the authorities to prescribe regulations, which must be complied with, before a minority institution could seek or retain affiliation and recognition. But it was also stated that the regulations ., made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives - that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to ·establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This,· in our view, is the correct approach to the problem.

123Copy pinpoint123. After referring to the earlier cases in relation to the appointment of teachers, it was noted by Khanna, J., that the conclusion which followed was that a law which interfered with a minority's choice of qualified teachers, or its disciplinary control over teachers and· other members of the staff of the institution, was void, as it was violative of Article 30( I). While it was permissible for the state and its educational authorities to prescribe the qualifications of teachers, it was held that once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the state would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution was regarded as one of the essential ingredients under Article 30(1). The Court's attention was drawn to the fact that in the Kerala Education Bill case, this Court had opined that Clauses (11) and (12) made it obligatory for all aided schools to select teachers from a panel selected from each district by the Public Service Commission and that no teacher of an aided school could be dismissed, removed or reduced in rank without the previous sanction of the authorized -officer. At page 245, Khanna, J., observed that in cases subsequent to the opinion in the Kerala Education Bill case, this Court G had held similar provisions as Clause (11) and Clause (12) to be violative of Article 30(1) of the minority institution. He then observed as follows:-

The opinion expressed by this Court in Re Kerala Education Bill j ". . . . . ... (supra) was of an advisory character and though great weight should .-. · be attached to it because of its persuasive value, the said opinion cannot override the opmion subsequently expressed by this Court in H

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA (KIRPAL, CJ.] 685

contested cases. It is the law declared by this Court in the subsequent A contested cases which would have a binding effect. The words "as at present advised" as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill in this respect was hesitant and tentative and not a final view in the matter....."

.. 124. In Lilly Kurian V; Sr. Lewina and Ors., [1979] 1 SCR 820, this B I Court struck down the power of the Vice-Chancellor to veto the decision of the management to impose a penalty on a teacher. It was held that the power of the Vice-Chancellor, while hearing an appeal against the imposition of the penalty, was uncanalized and unguided. In Christian Medical College Hospital Employees' Union and Anr. v. Christian Medical College Vel/ore Association C and Ors., [ 1988] 1 SCR 546, this Court upheld the application of industrial law to minority colleges, and it was held that providing a remedy against unfair dismissals would not infringe Article 30. In Gandhi Faizeam College Shahajhanpur v. University of Agra and Anr., [1975] 3 SCR 810, a law which sought to regulate the working of minority institutions by providing that a broad-based management committee could be re-constituted by including therein the Principal and the senior-most teacher, was valid and not.violative •· of the right under Article 30(1) of the Constitul:ion. In All Saints High.School, Hyderabad Etc. Etc. v. Government ofA.P. and Ors. Etc., (1980] 2 SCR 924, a regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority, was held to be invalid, as it sought to confer an unqualified power upon the competent authority. In Frank Anthony Public School Employees Association v. Union of India and Ors., [1987] I SCR 238, the regulation providing for prior approval for dismissal was held to be invalid, while the provision for an appeal against the order of dismissal by an employee to a Tribunal was upheld. The regulation requiring prior approval F · before suspending an employee was held to be valid, but the provision, which exempted unaided minority schools from the regulation that equated the pay and other benefits of employees of recognized schools with those in schools run by the authority, was held to be invalid and violative of the equality clause. It was held by this Court that the regulations regarding pay G and allowances for teachers and staff would not violate Article 30.

125Copy pinpoint125. In the St. Stephen's College case, the right of minorities to administer educational institutions and the applicability of Article 29(2) to an institution to which Article 30( I) wa_s applicable came up for consideration. St. Stephen's College claimed to be a minority institution, which was affiliated H

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A to Delhi University; the College had its own provisions with regard to the admission of students. This provision postulated that applications would be invited by the college by a particular date. The applications were processed and a cut-off percentage for each subject was determined by the Head of the respective Departments and a list of potentially suitable candidates was prepared on the basis of 1:4 and 1:5 ratios for Arts and Science students respectively, and they were then called for an interview (i.e., for every available seat in the Arts Department, four candidates were called for interviews; similarly, for every available seat in the Science Department, five candidates were called for interviews). In respect of Christian students, a relaxation of upto 10% was given in determining the cut-ofT point. Thereafter, the interviews were conducted and admission was granted. The Delhi University, however, had issued a circular, which provided that admission should be granted to the various courses purely on the basis of merit, i.e., the percentage of marks secured by the students in the qualifying examination. The said circular did not postulate any interview. Thereafter, the admission policy of St. Stephen,s Collegewas challenged by a petition under Article 32. It was contended by the petitioners that the College was bound to follow the University policy, rules and regulations regarding admission, and further argued that it was not a minority institution, and in the alternative, it was not entitled to discriminate against students on the ground of religion, as the college was receiving grant- in-aid from the government, and that such discrimination was violative of E Article 29(2). The College had also filed a writ petition in the Supreme Court taking the stand that it was a religious minority institution, and that the circular of the University regarding admission violated its fundamental right under Article 30. This Court held that St. Stephen's College was a minority instituti,on. With regard to the second question as to whether the college was bound by the University circulars regarding admission, this Court, by a majority F of 4-1, upheld the admission procedure used by the College, even though it was different from the one laid down by the University. In this context, the contention of the College was that it had been following its own admission programme for more than a hundred years and that it had built a tradition of excellence in a number of distinctive activities. The College challenged the G 'University circular on the ground that it was not regulatory in nature, and that it violated its right under Article 30. Its submission was that if students were admitted purely on the basis of marks obtained by them in the qualifying examination, it would not be possible for any Christian student to gain admission. The college had also found that unless a concession was afforded, the Christian students could not be brought within the zone of consideration H as they generally lacked merit when compared to the other applicants. This

p. 687 Copy page pinpoint

Court referred to the earlier decisions, and with regard to Article 30(1 ), A observed at page 596, paragraph 54, as follows:-

"The minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. The administration of educational institutions of their choice under Article 30( 1) means 'management of the affairs of the institution'. B This management must be free from control so that the founder or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in genera! and the institution in particular wi11 be best served. But the standards of education are not a part of the management as such. The C standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standards of excellence expected of educational institutions. They <:annot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others ......"

126Copy pinpoint126. It ~as further noticed that the right under Article 30(1) had to be read subject to the power of the state to regulate education, educational standards and allied matters. In this connection, at pages 598-99, paragraph 59, it was observed as follows:-

"The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general Jaws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long H

p. 688 Copy page pinpoint

A as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).

127Copy pinpoint127. Dealing with the question of the selection of students, it was accepted that the right to select students for admission was a part of administration, and that this power could be regulated, but it was held that the regulation must be reasonable and should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. Bearing C this principle in mind, this Court took note of the fact that if the College was to admit students as per the circular issued by the University, it would have to deny admissions to the students belonging to the Christian community because of the prevailing situation that even after the concession, only a small number of minority applicants would gain -admission. It was the case of the College that the selection was made on the basis of the candidate's D academic record, and his/her performance at the interview keeping in mind his/her all round competence, his/her capacity to b·~nefit from attendance at the College, as well as his/her potential to contribute to the life of the College. While observing that the oral interview as a supplementary test and not as the exclusive test for assessing the suitability of the candidates for college adm~ssion had been recognized by this Court, this Court observed that the admission programme of the college "based on the test of promise and • accomplishment of candidates seems to be better than the blind method of selection based on the marks secured in the qualifying examinations." The Court accordingly held that St. Stephen's College was not bound by the impugned circulars of the University. This Court then dealt with the question as to whether a preference in favouf of, or a reservation of seats for candidates belonging to, its own community by the minority institutions would be invalid under Article 29(2) of the Constitution. After referring to the Constituent Assembly Debates and the proceedings of the Draft Committee that led to the incorporation of Articles 29 and 30, this Court proceeded to examine the question of the true import and effect of Articles 29(2) and 30(1) of the G Constitution. On behalf of the institutions, it was argued that a preference given to minority candidates in their own educational institutions, on the ground that those candidates belonged to that minority community, was not violative of Article 29(2), and that" in the exercise of Article 30( l ), the · , minorities were entitled to establish and administer educational institutions H for the exclusive advantage of their own community's candidates. This

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contention was not accepted by this Court on two grounds. Firstly, it was held that institutional preference to minority candidates based on religion was apparently an institutional discrimination on the forbidden ground of religion -the Court stated that "if an educational instilution says yes to one candidate but says no to other candidate on the ground of religion, it amounts to discrimination on the ground of religion. The mandate ofArticle 29(2) is that there shall not be any such discrimination." It further held that, as pointed out in the Kerala Education Bill case, the minorities could not establish educational institutions for the benefit of their own community alone. For if such was the aim, Article 30(1) would have been differently worded and it would have contained the words "for their own community". In·this regard, it would be useful to bear in mind that the Court at page 607, paragraph 81, C noticed that:-

"Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to ·have a relatively homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a 'melting pot' in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions. F

128Copy pinpoint128. The Court then dealt with the contention on behalf of the University that the minority institutions receiving government aid were bound by the mandate of Article 29(2), and that they could not prefer candidates from their own community. The Court referred to the decision in the case ofChampakam Dorairajan (supra), but observed as follows: G " ........the fact that Article 29(2) applied to minorities as well as non- minorities did not mean that it was intended to nullify the special right guaranteed to minorities in Article 30( 1). Article 29(2) deals with non-discrimination and is available only to individuals. General equality by non-discrimination is not the only need of minorities. Minority rights under majority rule implies more than non· H