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

'State' in Article 12 of the Constitution in view of the judgment of the Constitution Bench of seven learned Judges in Pradeep Kumar Biswas and G Ors. v. Indian Institute of Chemical Biology and Ors., [2002] 5 sec 1] I. They form a special class of educational institutions because they have the protection of Article 3.0(1) under which they are established and administered by minorities, whether based on religion or language. Clause (2) of Article 30 is also a pointer to the fact that the ir.stitutions falling under clause ( 1) of Article 30 form a separate class. I have noticed above that the mandate of clause (2) of Article 29 is addressed to all educational institutions maintained

T.M.A. PAl FOUNDATION~·. STATE OF KARNATAKA [QUADRI , J.] 763 by the State or receiving ~id out of State funds. It is, therefore, a general mandate applicable to all the categories of institutions. It has been settled by a long line of decisions of this Court with which I am in respectful agreement that granting of aid to such institutions cannot be such as to denude them of their character as minority institutions. Even after receiving aid, they remain minority educational institutions in all their attributes. B The right conferred on the student community under Article 29(2) is a truncated right though it is available to each student and against all the institutions maintained by the State or receiving aid from the State funds. Nevertheless, the right under Article 30(1) is a special right conferred on minorities, whether based on religion or language, to establish and to administer educational institutions of their choice and with that goes the special right of the minority students to seek admission in such institutions. Article 29(2) even if regarded as a special right in regard to the student community is of general application in regard to all the institutions maintained by the State or receiving aid from the State funds when compared to special right conferred on minorities under Article 30. A provision may be special in one aspect and general in other aspect.

In The Life Insurance Corporation of India v. D.J Bahadur and Ors., AIR (1980) SC 2181, Krishna lyer, J. speaking for a three-Judge Bench observed: E "For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer pOints of law. In law, we have a cosmos of relativity not absolutes - so too in life." • This was approved by a Constitution Bench of this Court in Ashoka Marketing F Ltd. and Anr. v. Punjab National Bank, AIR (1991) SC 855.

In the light of the above discussion on the principle of generalia specialibus non deroganl, I have no hesitation in concluding that the general right of the students under Article 29(2) of the Constitution available in respect of an educational institutions in general does not prevail over the special right conferred on the minority educational institutions established and administered under Article 30(1) and receiving aid by virtue of Article 30(2) 'of the Constitution.

The minority educational institutions established and administered under Article 30( l) for the benefit of the students of their community have the right H

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

A to admit the students of their choice of their community and without prejudice _to the right of the minority students to admit students of the non-minority. They have a right to claim aid under clause (2) of Article 30, if the State decides to grant aid to other educational institutions in the State. The grant of aid by the State cannot alter the character of a minority institution, including its choice of the students. Unlike Article 337, there is nothing in clause (2) B of Article 30 to suggest that grant of aid will result in making a percentage of seats available for non-minority students or be subject to Article 29(2). r From the point of view of the minority students who seek admission in the minority educational institutions, it hardly makes a difference whether the institution is an aided institution or an unaided institution. In the case of a c rich minority not getting aid under clause (2) of Article 30 for the minority educational institution established and administered under clause (1) of Article 30, the right of the minority students seeking admission therein cannot be different from the right of poor minority students se.eking admission · in educational institutions established and administered by poor minorities which are aided. On the institutions deciding to take aid from the State, the right of D ' minority students to seek admission in such institutions cannot be affected. ~ ' It follows that the concomitant special right of students who belong to minority community which established the institution and is administering it under Article 30(1 ), to seek admission in such an institution has precedence ovet the general right of non-minority students under Article 29(2). So having ~ E regard to the right of the minority educational institutions to admit the students ( of their choice as well as the right of the students of the minority community to seek admission in such institutions, it is difficult to comprehend that merely on the ground that the institution is receiving aid out of State funds, their rights can be set at naught with reference to Article 29(2). Therefore, it 1- F appears to-me that on grant of aid by the State, Article 29(2) does not control Article 30(1 ). \ ~ I

Even the historical background in which clause (2) of Article 29 came '·

to be inserted would support this interpretation. '\ The pre-cursor of Article 29(2) was clause 18(2), which read as under: G ) "18(2). No minority whether based on religion, community or language fo"

shall be discriminated against in regard to the admission into state educational institutions." '{} This clause was intended to ensure that minority students are not discriminated against in regard to admission into State educational institutions on the ground ... ~··

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA (QUADRl, J.] 765

that the minorities are conferred special right to establish and administer educational institutions of their choice. To enlarge this right, an amendment was suggested by Smt. Pumima Banerji proposing that after the words 'State educational institutions' the words 'State aided' be inserted so that they could avail of the same right agaiilst State aided educational institutions as well. But the proposed amendment to that clause moved by her was initially not accepted and the clause, quoted above, was adopted. It later became Article 23(2), which read thus:

"23(2). Cultural and Educational Rights -

(1) XXX XXX XXX _.. • c (2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the State.

(3) XXX XXX XXX D When this Article was debated again, an amendment was suggested that for the words 'no minority' the words 'no citizen' be substituted. At that point, Shri Thakur Das Bhargava moved an amendment and the following clause was substituted: E "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only or religion, race, caste, language or any of them."

This was ultimately adopted and that clause became clause (2) of Article 29. From this background, it is clear that the benefit which was intended only for minorities - not to be denied admission into any educational institution maintained by the State - was extended in two aspects; the first is that 'all the citizens' were brought in the class of beneficiaries and the second is that in addition to the institutions maintained by the State, 'the institutions receiving aid out of the State funds' were also included. In my view, the intention in extending the scope of clause (2) of Article 29 could never have been to deprive the minorities of the benefit which they were otherwise having under clauses (I) and (2) of Article 30. A clause. which was intended mainly to further protect the ·minorities c.ould not be so construed as to stultify their right conferred under Article 30 of the Constitution. H

766 SUPREME COURT REPORTS [20021 SUPP. 3 S.C.R.

A Admission of the Constituent Assembly debates for purposes of interp~etation of the provisions of the Constitution is of doubtful authority. I do no~ propose to delve into the question of admissibility of the debates of the Constituent Assembly for interpreting a constitutional provision. Suffice it to mention that in view of the speeches of the Law Lords in the case of B Black-C,lawson v. Papierwerke AG, (1975) AC 591 and of the Privy Council in Admjnistraior-Genera/ of Bengal v. Prem Nath Mullick, (1895) 22 I.A. 107 and of this Court in A.K. Gopalan v. State of Madras, AIR (1950) SC 27 (para 112) and Trav-Cochin v. Bombay Company Ltd., AIR (1952) SC 366, I am of the view that admissibility of speeches made in the Constituent Assembly for interpreting provisions of the Constitution is not permissible. C The decisions of this Court in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973] 4 SCC 225; R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684; Indra Sawhney etc. etc. v. Union of India and Ors. etc.' etc., AIR (1993) SC 477; K.S. Paripoornan v. State of Kerala, AIR (1995) SC 1012 and P. V. Narasimha Rao v. State (CBIISPE), AIR (1998) SC t' D 2120 do not alter that position nor do they lay down a different proposition. The preponderance of opinion appears to me not to rely on the debates in the Constituent Assembly or the Parliament to interpret a constitutional provision although they may be relevant for other purposes.

It would be interesting to notice the following observations of Lord E Wilberforce in Black-Clawson's case (supra) in this context :

· "It would be degradation of that process if Courts were to be a reflecting mirror of what the interpreting agency would say."

A glaring example of a debate leading astray is the contention urged that the cultural and educational rights sanctified in Articles 29 and 30 were intended to be ~nly temporary. Unlike Article 334 in regard to reservation of seats and special representation, there is nothing in the Constitution itself to support such an impish and novel contention. Lest we forget, we should remind ourselves that compromises were made, pledges and assurances were held out io build a strong united sovereign secular nation. In the rhetoric of the age' the spirit in which constitutional provisions were fonnulated cannot be lost sight of and interpretation divorced from the words employed, cannot be resorted to, to undo what our founding fathers did to enact and give to ourselves this great Constitution. Such contentions do little service to the letter or spirit of the Constitution in preserving the delicate balance. For these reasons, I am of the view that interpretation of constitutional provision cannot

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[QUADRI,J .] 767

be founded on the speeches made in the Constituent Assembly because as A Lord Reid in Black Clawson's case (supra) observes :

"We are seeking not what Parliament meant but the true meaning of what Pari iament said."

Insofar as historical matters are concerned, it is an accepted position B that they are admissible for the purpose of interpretation of a constitutional provision and to that extent, I referred to that aspect.

In any event, there is nothing specific in the debates to suggest that Article 29(2) was intended to cut down the rights conferred under clauses (l) and (2) of Article 30 of the Constitution. C The next aspect which needs to be looked into is, whether the interpretation put by me is in consonance with the principles of equality and secularism which are the basic features of our Constitution.

The principle of equality has two facets; (i) equality in law and (i'i) D equality in fact. Just a provision for equality in law would be of no consequence unless the provision also take care to bring about equality in fact. Securing equality of status and of opportunity is a constitutional mandate enshrined in Article 14 of the Constitution which directs that the State shall not deny to any person equality before the Jaw or equal protection of the law within the territory of India. Article 14 prohibits unequal treatment or discrimination against any person within the territory of India by State. The great objective of equality before law, guaranteed under Article 14 of the Constitution, cannot be achieved if unequals are treated alike as that would only result in inequality. The founding fathers of the Constitution were alive to the ground realities and the existing inequalities in various sections of the society for historical or other reasons and provided for protective discrimination in the Constitution with regard to worr:en, children, socially and educationally backward classes of citizen, scheduled castes and scheduled tribes by enabling the State to make special provision for them by way of reservation as is evident from clauses (3) and (4) of Atticle 15 and clauses (4) and (4A) of Article ·16 of the Constitution. The apprehensions of religious minorities and their demand for separate electorates, were settled by providing freedom of conscience and free profession, practice and propagation of religion for all the citizens under Articles 25, 26 and 28 which take care of their religious rights of minorities equally; by special provisions their right to conserve a distinct language, script or culture is guaranteed as a fundamental right in Article 29; further, H

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

A all minorities, whether based on religion or language, are conferred an additional fundamental right to establish and administer educational institution of their choice as enshrined in Article 30 of the Constitution. The right under Article 30(1) is regarded so sacrosanct by the Parliament in its constituent capacity that when by operation of the law of the land - Land Acquisition Act B - compensation awarded for acquisition of a minority educational institution was to result in restricting or abrogating the right guaranteed under clause ( 1) of Article 30, it by the Constitution (Forty Fourth (Amendment) Act) inserted clause ( 1-A) in Article 30. It provides that the Parliament in the case of a Central legislation or a State legislature in the case of State legislation shall make a specific law to ensure that the amount payable to the minority educational institutions for the acquisition of their property will not be such as will in any manner impair their functioning. A Constitution Bench of this ... Court in interpreting clause ( 1-A) of Article 30 in Society of St. Joseph's College v. Union of India and Ors., [2002] 1 SCC 273 observed thus :

· "Plainly, Parliament in its constituent capacity apprehended that minority educational institutions could be compelled to close down or curtail their activities by the expedient of acquiring their property and paying them inadequate amounts in exchange. To obviate the violation of the right conferred by Article 30 in this manner, Parliament introduced the safeguard provision in the Constitution, first in Article E 31 and then in Article 30."

The problems of minority rights are not peculiar to India which is a multi-religious, multi-linguistic and multi-cultural nation. Recognition of rights of minorities, their preservation by skilful tackling of the problems became evident in Europe after the First World War. It will be useful to refer to the opinion of the Permanent Court of International Justice (for short, 'International Court') in regard to minority schools in Albania (known as 'the Albanian' case) which would illustrate how equality in fact is an essential requisite to achieve equality in law and for that purpose preferential treatment of minority is inherent. At the time of Albania's accession to the League of Nations, it signed a declaration which, inler alia, protected the rights of minorities to establish educational institutions. It appears that by the amendment of the Albanian Constitution, a provision was made for compulsory primary education for all the Albanian nationals in State schools as a result of which all private schools whether run by the majority or minority were to be closed. On a complaint by the minority of Albanian nationals, the case was referred to the H International Court. The Albanian Government took the plea that the abolition

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRJ, J.] 769

of private schools was a measure of general application to both majority as well as minority schools and as such there was no violation of minority rights. This plea was rejected and it was observed that the object of the declaration was,

"first to ensure that nationals belonging to racial religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State and the second to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics."

It was held that these two requirements were indeed closely overlapping for, there would be no true equality between a majority and a minority, if the latter were deprived of its own institutions and was consequently compelled ~ to renounce that which constitutes the very essence of its being a minority. It was also observed that equality in law precludes discrimination of any kind whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations. (emphasis supplied) The abolition of institutions which alone would satisfy the special requirements of the minority and their replacement by Government institutions would destroy the equality of treatment for, its effect would be to deprive the minority of the institutions, appropriate to its needs, whereas the majority would continue to have them supplied in the institutions created by the State. It is this principle that is given effect to in guaranteeing minority rights under Article 30(1) which is nothing but a differential treatment for proper application of the principle of equality enshrined in Article 14 of the Constitution and this cannot be lost sight of when dealing with Article 29(2).

The principle decided in Albanian case was followed by Reddy, J., F Khanna, J. and Mathew, J. in St. Xavier's case (supra).

We have nothing in common in application of principle· of equality embodied in Article 14 to various social groups including minorities under our Constitution and the process of affirmative action which is an offshoot G · of the 14th Amendment to the Constitution of the United States of America. The 14th Amendment to the American Constitution does not make any allowance for the deprived classes of the society unlike the approach adopted by the Indian Constitution to equality and secularism, which is loaded with favourable discrimination clauses. Even so, in the case of Regents of the University ofCalifornia v. Bakke, 438 US 265 (1978), Justice Powell suggested H

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

A some measures which would be consistent with the equality clause, viz., extra remedial_ training and education for minorities (however expensive), aggressive recruitment of minorities and even the consideration of an applicant's minority status as an 'equitable plus factor' in conjunction with his other merits. In that case, adoption of quota system for the minority B groups ·in that country was rejected which is in tune with City of Richmond v. J.A. C_roson Co., 488 U.S. 469. Another example of preferential treatment to attain equality in fact is to be found in United Steelworkers v. Weber, 443, U.S. I93 ( 1979). In that case, the court upheld the double standards in grading minorities as justified by legislative history and intent. 'l

C The Canadian Constitution, by Section 23, specifically provides for minority language educational rights.

~e find no substance in the contention that granting aid to minority educational institutions under Article 30, which cater to the needs of the ., minorities, will infringe the principle of secularism. There can be no doubt 0 that secularism is a basic feature of our Constitution. It needs to be noted that the State aid, if any, is not to the religious institutions of the minorities or for imparting religious instructions to them though our Constitution is not lacking in prov!ding grants to such religious institutions in India. The State aid; if any, may be given to educational institutions established and administered by minorities based on religion or language. Those who advocate this contention E ignoreI the fact that India is a multi-religious, multi-cultural and multi-linguistic nation and the Constitution guarantees preservation of their peculiarities. Both before as well as after the re-organisation of States, each State was and is now having various linguistic minorities. Linguistic minorities have become more vulnerable after the re-organisation of States on the basis of language. F If, in a State, aid is given to the institutions of linguistic minority, the State is nonetheless helping the citizens of India in coming up in life and joining the mainstream. No national interest or public interest will be served by denying the aid to linguistic minority institutions for not_ throwing it open to the students of linguistic majority. On reciprocal basis, each State would be prone to adopt the same attitude with reference to linguistic minority groups and would either deny aid or insist that the institutes be thrown open to the linguistic majority of the State which, to say the least, would frustrate the very purpose of the protection of the linguistic minority right. Further, if each State adopts this view of not giving aid to the minority institutions or insisting that they be thrown open for the majority groups, it would only encourage bitter!feeling among the various groups in the States and that would only

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [QUADRI,J.] 77J

hamper assimilating of linguistic majority and linguistic minority which will weaken the process of national integration rather than strengthen it. By and large, the same logic would apply to religious minority institutions as different religious communities are in majority in different States though a few only. Having pondered over this aspect, I have unhesitatingly come to the conclusion that by serving their own linguistic minorities and throwing their institution open to the majority groups only on fulfillment of the need of minorities in a State, is not in violation of the scheme of Article 29{2) and Article 30 ofthe Constitution. I am, therefore, convinced that by not applying Article 29(2) of the Constitution to minority educational institutions based on religion or language, the principle of equality or secularism will not in any way be violated. C The first case in which the ground of challenge was based on Article · 29(2), is The State ofMadras v. Srimathi Champakam Dorairajan etc., [1951] SCR 525, which is popularly known as 'the Communal G.O. 'case. In that case, for the purpose of admission of students to the engineering and medical colleges, maintained by the State, a unit of 14 seats was fixed in which D specified number of seats were allocated among various groups on the basis of religion and caste. The challenge to the G.O. was upheld by the High Court. On appeal to this Court a Constitution Bench of seven learned Judges of this Court took the view that the Communal G.O. constituted a violation of fundamental right guaranteed to the citizens of India by Article 29(2) of the E Constitution and was void. As on that date, clause (4) of Article 16 enabled the State to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which was not adequately represented in services under the State but no such provision was' made in regard to seats in educational institutions maintained by the State. There was no such provision in regard to admission into educational institution in F Article 15( I) of the Constitution which prohibited discrimination on grounds of religion, race, caste, sex, place of birth or any of them. Be that as it may, it was not a case where right of the students belonging to minorities to seek admission in an educational institution established under Article 30( 1) of the Constitution vis·a-vis the claim of non-minorities under Article 29(2) was G considered.

The next case in which Article 29 came up for consideration of this Court is the Bombay Education Society (supra). There, the respondent- society was running an Anglo-Indian school which was recognised and aided by the State. The medium of instruction in the school was English. The State H

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

A of Bombay issued a circular to the effect that thereafter only children of Anglo-Indians or of non-Asiatic descent could secure admission in the schools administered by the respondent society. Both the Society as well as the students who were precluded from seeking admission in the school, by the impugned order, challenged the said order in a writ petition under Article 226 before the High Court at Bombay. Against the judgment of the High Court B quashing the impugned circular and allowing the writ petition, the State came up in appeal before this Court. It was held by the Constitution Bench of five learned Judges of this Court that in view of the fundamental right guaranteed to a minority, like the Anglo-Indian community, under Article 29(1) to conserve its own language, script or culture and the right to establish and administer C educational institutions of its own choice under Article 30( I), there is implicit therein the right to impart instruction in its own institutions to the children of its own community in its own language and that the State by its police power cannot determine the medium of instruction in opposition to sue~ fundam~ntal right and, therefore, the government order was violative of Articles D 29(2) and 30(1) of the Constitution. The question with which we are faced now was not addressed in that case.

It is true that while rendering its advi~ory opinion in The Kerala Education Bill (supra), on question No.2, this G:ourt considered the scope of Articles 29 and 30 and observed, inter alia, that the right under Article 30(1) E however, was subject to clause (2) of Article 29 which provided that no citizen should be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste, language or any one of them. It must also be pointed out that in that case speaking for six of the learned Judges, Das, CJ. laid down,

F ~ "To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member ~ of any other community only on the grounds there mentioned (Article · 29(2)) 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 G entitled to any aid. The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution -... ~ith a sprinkling of outsiders admitted into it. "

[Emphasis supplied]

H In that case, the Court was answering the plea that in an institution

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[QUADRI,J.] 773 under Article 30( I), if a non-minority student is admitted, it will lose its A character as a minority institution. This case also did not deal with the question whether denial of admission to a non-minority student by an aided minority educational institution protected under Article 30(1) in order to provide admission in a course of study to a minority student would be in violation of Article 29(2} of the Constitution. B The only case in which the right of non-minority students to secure admission in a minority educational institution under Article 29(2) came up for consideration of this Court is St. Stephen's College v. University of Delhi [1992] 1 SCC 558. The case revolved around the validity of St. Stephen's college's admission policy to interview candidates for admission into the C college, in addition to marks obtained by them in the qualifying examination, in order to assess the merit of students. The Delhi University provided that merit_ for the purpose of admission was to be assessed solely on the basis of the marks obtained by candidates in the qualifying examination. It was contended by counsel for non-minority students that denial of admission to a non-minority student by an institution under Article 30 was violative of D Article 29(2). St. Stephen's College was receiving State aid. The Court, by -- ·-majority, held t~at the admission policy of the college was not arbitrary or violative of any fundamental right and that the right to admit students of their choice is an essential part of the right to administer under Article 30(1 ); that such an institutional preference (as practiced by Stephens) for minority candidates would not be violative of Article 29(2); that although Article 29 and Article 30 are distinct and separate, they do overlap and competing interests under Article 29(2) and Article 30 must be balanced in order to harmoniously construe both articles and give effect to both of them. It was held that although minorities were entitled to accord preference in favour of, or reserve seats for candidates belonging to their own community, yet preferential admission of candidates could be only upto 50% of the annual admissions to their institution in order to _maintain the minority character of their institution. With respect to the other 50% seats, admission should be open to all the students based on merit, and in that no preferential admission by the· institution was permissible. G The right conferred under Article 29(2) is an individual right. The difficulty is arising because it is sought to be converted into a collective right ., of non-minority students vis-a-vis minority educational institutions so as to take away a slice of the seats available in such institutions. In an institution established and administered under Article 30(1), the need of minority students H

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

A is foremo~t as it is for their benefit that the institution exists. The grant of aid to the 'institution is to fulfil its objective and not to deviate from the object .. and barter the right of the minority students. It is only when the need of the minority ~tudents is over that in regard to the remaining seats that the institutio'n can admit students of non-minority. In each year in a given course the same number of minority students may not apply. The minority educational institutions can admit non-minority students of their choice in the left over seats in each year as Article 29(2) does not override Article 30( I). If the need of the minority is to be given its due, the question of determining the need cannot be left to the State. Article 30 is intended to protect the minority educational institutions from interference of the State so they cannot be thrown at .the mercy of the State. The State cannot be conferred with the power to determine the need of each minority institution in the country which will be both unrealistic and impracticable apart from abridging the right under Article 30{1 ). It is for this and the other reasons mentioned above, in my . respectful view, fixing a percentage for intake of minority students in minority educational institutions would impinge upon the right under Article 30 as it would amount to cutting down that right. The best way to ensure compliance with Article 29(2) as well as Article 30(1) is to consider individual cases where denial of admission of a non-minority student by a minority educational institution is alleged to be in violation of Article 29(2) and provide appropriate relief. E Another contention that is pressed is when Article 28 applies to institutions established and administered under Article 30(1), why Article 29(2) shou.ld not also be applicable?

Article 28 reads as follows : F "28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions- (l) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

G (2) Nothing in clause ( 1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires the religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the H State or receiving aid out of State funds shall be required to take part

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA[QUADRI,J.] 775

in any religious instruction that may be imparted in such institution A 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."

A perusal of the said Article makes it clear that the mandate of clause ( 1) thereof is that in any educational institution wholly maintained out of State B funds, no religious instruction shall be provided. It obviously applies to State educational institutions and not to private educational· institutions including minority educational institutions under Article 30. Clause (2) of Article 28 which is in the nature of a proviso to clause ( 1), excludes application of clause (I) to an educational institution established under any endowment or trust requiring imparting of religious instructions therein, and is administered by the State. Sub-clause (3) gives liberty to a person attending any educational institution recognised by the State or receiving aid out of State funds not 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. It may be noticed that imparting of religious instruction or conducting of religious worship in an educational institution which is recognised by the State or which is receiving aid of the State funds is not prohibited. It is only the individual freedom of conscience of those who attend such an institution that is protected. In contra-distinction to the mandate in respect of an institution which is wholly maintained out of the State funds, postulated under clause (I), the injunction contained in clause (3) is that an educational institution recognised by the State or receiving aid out of the State funds cannot oblige any person attending the educational institution to take part in any religious instruction or to attend any religious worship being imparted therein. Obviously, F the right conferred under any provision of the Constitution including Article 30 does not either expressly or by necessary implication empower any educational institution including a minority educational institution to compel anybody to have instructions in the educational institution established and administered thereunder much less religious instructions or to attend any religious worship. Article 28 forms part of the group of articles placed under G the caption 'Right to freedom of Religion' and not part of 'Cultural and Educational Rights'. But that apart, clause (3) of Article 28 is a personal right. It is a species ofthe principle of freedom of religion enshrined in Article 25. Article 28(3) stands in the same position to Article 25(1) as Article 29(2) to Article 15( t ). The premise of the contention, therefore, appears to be H

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

A inappropriate and the logic inapplicable to substantiate that Article 29(2) overrides Article 30( 1) of the Constitution.

I found no support from the decisions of this Court in The Dargah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., [1962] 1 SCR 383 and Tilkayat Shri Govind/alji Maharaj v. The State of Rajasthan and Ors., B (1964] 1 SCR 561 for the contention that just as Article 26 was held to be subject to Article 25, so also Article 30 should be read subject to Article 29(2).

all For these reasons, in my view, to create inroads into the constitutional protection granted to minority educational institutions by forcing students of dominant groups of the choice of the State or agency of the State for admission in such institutions in preference to the choice of minority educational institutions will amount to a clear violation of the right specifically guaranteed under Article 30(1) of the Constitution and will turn the fundamental right into a promise of unreality which wiJJ be impermissible. Right of minorities to admit or students non-minority of their choice in their educational institutions set up under Article 30 is one thing but thrusting students of non-minority on minority educational im.titutions, whatever may be the percentage, irrespective of and prejudicial to the need of the minority in such institution, is entirely another. It is the former and not the latter course of action, that will be in . conformity with the scheme of clause (2) of Article 29 and clauses ( 1) and (2) of Article 30 of the Constitution. E RUMA PAL, J. I have had the privilege of reading the opinion of Hon 'ble the Chief Justice. Although I am in broad agreement with most of t~e conclusions arrived at in the judgment, I have to record my respectful dissent with the answer to Question 1 and Question 8 in so far as it holds that Article F 29(2) is applicable to Article 30( l ). I consequently differ with the conclusions as stated in answer to Questions 4, 5(b) and ! I to the extent mentioned in this opinion. • Re:· Question 1

G What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India?

Article 30 affords protection to minorities in respect of limited rights, namely, the setting up and administration of an educational institution . .The question of protection raises three questions : (I) protection to whom? (2) H against ~hom? and (3) against what? The word minority means "numerically

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMA PAL,J.] 777

less". The question then is numerically less in relation to the country or the A State or some other political or geographical boundary?

The protection under Article 30 is against any measure, legislative or otherwise; which infringes the right's granted under that article. The right is not claimed in a vacuum - it is claimed against a particular legislative or executive measure and the question of minority status must be judged in relation to the offending piece of legislation or executive order. If the source of the infringing action is the State, then the protection must be given against the State and the status of the individual or group claiming the protection must be determined with reference to the territorial limits of the State. If however the protection is limited to State action, it will leave the group which is otherwise a majority for the purpose of State legislation, vulnerable to Union legislation which operates on a national basis. When the entire nation is sought to be affected, surely the·- question of minority status must be detennined with reference to the country as a whole.

is or is intended to be constituted. The argument was negatived as being held inherently fallacious (p.l 049) and also contrary to the language of Article 350- A. However, the Court expressly refrained from finally opining as to whether E the existence of a minority community should in circumstances and for the- purposes of law of that State be determined on the basis of the population of the whole State or whether it should be determined on the State basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of the population of a particular p locality when the law under attack applies only to that locality. In other words the issue was - should the minority status be determined with reference to the source of legislation viz., the State legislature or with reference to the extent of the law's application. Since in that case the Bill in question was _admittedly a piece of State legislation and also extended to the whole of the State of Kerala it was held that "the minority must be determined by reference G to the entire population of that State". (p.l 050)

In the subsequent decision in DAV College v. State of Punjab (1) 1, this Court opted for the first principle namely that the position of minorities should be determined in relation to the source of the legislation in question H

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

A and it was clearly said: "~hough there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire .population of the country, in our view they are to be determined only in'relation to the particular legislation which is sought to be impugned, namely that if it is the State legislature these minorities have to be determined in relation to the population of the State." '• In D.A. V College v. State of Punjab, (11), 2 Punjabi had been sought to be enforced as the sole medium of instruction and for examinations on the ground that it was the national policy of the Government of India to energetically develop Indian languages and literature. The College in question used Hindi as the medium of instruction and Devnagri as the script. Apart from holding that the State Legislature was legislatively incompetent to make Punjabi the sole medium of instruction, the Court reaffirmed the fact that the College although run by the Hindu community which represents the national majority, in Punjab it was a religious minority with a distinct script and therefore the State could not compel the petitioner-College to teach in Punjabi or take examinations in that language with Gurmukhi· script.

But assuming that Parliament had itself prescribed Hindi as the compulsory medium of instruction in all educational institutions throughout the length and breadth of the country. If a minority's status is to be determined only with respect to the territorial limits of a State, non-Hindi speaking persons who are in a majority in their own State but in a minority in relation to the rest of the country, would not be able to impugn the legislation on the ground that it interferes with their right to preserve a distinct language and script. Oil the other hand a particular institution run by members of the same group in a different State would be able to challenge the same legislation and claim protection in respect of the same language and culture.

Apart from this incongruity, such an interpretation would be contrary to Article 29( l) which contains within itself an indication of the 'unit' as far as minorities are concerned when it says that 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 shall have the right to conserve the same. Merely because persons having a distinct language, script or culture are resident within the political and geographical limits of a State within which they may

H ~ l 97 l SCR {Supp) 697.

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [RUMAPAL,J.] 779 be in a majority, would not take them out of the phrase "section of citizens residing in the territory of India". It is a legally fortuitous circumstance that states have been created along linguistic lines after the framing of the Constitution.

In my opinion, therefore, the question whether a group is a minority or not must be determined in relation to the source and territorial application of the particular legislation against which protection is claimed and I would answer question 1 accordingly.

Re: Question 8

Whether the ratio laid down by this Court in the St. Stephen's case (St. C Stephen's College v. University of Delhi, {1992]1 SCC 558 is correct ? If no, what order?

In St. Stephen's Co/lege-1, the Court decided (a) that the minorities right to admit students under Article 30( 1) had to be balanced with the rights conferred under Article 29(2). Therefore the State could regulate the admission D of students of the minority institutions so that not more than 50% of the available seats were filled in by the children of the minority community and (b) the minority institution could evolve its own procedure for selecting students for admission in the institutions. There can be no quarrel with the decision of the court on the second issue. However, as far as the first E · principle is concerned, in my view the decision is erroneous and does not correctly state the law.

Article 30(1) of the Constitution provides that "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice". Article 29(2) on the other hand says 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". ,, Basically, the question is whether Article 30(1) is subject to Article 29(2) or is Article 29 (2) subject to Article 30(1)? If Article 30(1) does not confer th~ right to admit students then of course there is no question of conflict with Article 29(2) which covers the field of admission into "any educational

2 • 1971 SCR (Supp) 677.

~ 1992 (I) sec sss. H

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·A institution''. The question, therefore, assumes that the right granted to minorities under Article 30(1) involves the right to admit students. Is this assumption valid? The other assumption on which the question proceeds is that minority institutions not receiving aid are outside the arena of this appare9t conflict. Therefore the issue should be more appropriately framed as: - does the receipt of State aid and consequent admission of non-minority students affect the rights of minorities to establish and administer educational institution of their choice?. I have sought to answer the question on an interpretation of the provisions of the Constitution so that no provision is rendered nugatory or redundanr: on an interpretation of the provisions in the context of the objects which were sought to be achieved by the framers of the Con~titution; and, finally on a consideration of how this Court has construed. ~hese provisions in the past.

Both Articles 29 and 30 are in Part III of the Constitution which deals with 'Fundamental Rights'. The fundamental rights have been grouped and placed under separate headings. For the present purposes, it is necessary to consider the second, fourth and fifth groups. The other Articles in the other groups are not relevant. The second group consists of Articles 14 to 18 which have beeri clubbed under 'Right to Equality'. Articles 25 to 28 are placed under the fourth heading 'Right to Freedom of Religion'. Articles 29 and 30 fall within the fifth heading 'Cultural and Educational Rights'. E The. rights guaranteed under the several parts of Part III of the Constitution overlap and provide different facets of the objects sought to be achieved by the Constitution. These objectives have been held to contain the basic structure of the Constitution which cannot be amended in exercise of

F the powers under Article 368 of the Constitution. 5 Amongst these objectives are those of Equality and Secularism. According to those who have argued -- in favour of a construction by which Article 29(2) prevails over Article 30, Article 29(2) ensures the equal right to education to all citizens, whereas if Article 30 is given predominance it would not be in keeping with the achievement of this equality and would perpetuate differences on the basis of langl!age and more importantly, religion, which would be contrary to the G secular character of the Constitution. Indeed the decision in St. Stephens in holding that Article 29(2) applies to Article 30( 1) appears to have proceeded Sri Venkataramana Devaru and Ors. v. The Stare of Mysore and Ors., [1958] SCR 895, 918; Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha; [1959] Suppl. I SCR 806;

Keshvananda Bharati v. State of Kerala, AIR (1973) SC 1461 , para: 292, 559, 682 ·H and )164.

T.M.A.PAI FOUNDATION''· STATEOFKARNATAKA [RUMA PAL, J.] 781 on similar considerations. Thus it was said that unless Article 29(2) applied to Article 30(1) it may lead to "religious bigotry"; that it would be "inconsistent with the central concept of secularism" and "equality embedded in the Constitution" and that an "educational institution irrespective of community to which it belongs is a melting pot in our national Iife". 6 Although Article 30(1) is not limited to religious minorities, having regard to the tenor of the arguments and the reasoning in St. Stephens in support of the first principle, I propose to consider the argument on 'Secularism' first. .

Article 30 and Secularism

The word 'secular' is commonly understood in contradistinction to the word 'religious'. The political philosophy of a secular Government has been developed in the west in the historical context of the pre-eminence of the established church and the exercise of power by it over society and its institutions. With the burgeoning presence of diverse religious groups and the growth of liberal and democratic ideas, religious intolerance and the attendant violence and persecution of "non-believers" was replaced by ~ D growing awareness of the right of the individual to profession of faith, or non- profession of any faith. The democratic State gradually replaced and marginalised the influence of the church. But the meaning of the word 'secular State' in its political context can and has assumed different meanings in different countries, depending broadly on historical and social circumstances, the political philosophy and the felt needs of a particular country. In one country, secularism may mean an actively negative attitude to all religions and religious institutions; in another it may mean a strict "wall of separation" · between the State and religion and religious institutions. In India the State is secular in that there is no official religion. India is not a theocratic State. I However the Constitution does envisage the involvement of the State in matters associated with religion and religious institutions, and even indeed with the practice, profession and propagation of religion in its most limited and distilled meaning.

Although the idea of secularism may have been borrowed in the Indian Constitution from the west, it has adopted its own unique brand of secularism based on its particular history and exigencies which are far removed in many ways from secularism as it is defined and followed in European countries, the United States of America and Australia.

The First Amendment to the American Constitution is as follows: [1992] I SCC 558. 607 (para 81). H -.

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A ,"Congress shalJ make no law respecting an establishment of religio~, or prohibiting the free exercise thereof."

In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State'. 'Reynolds v. United States', (1878) 98 U S 145 at p.l64. B The Australian Constitution has adopted the First Amendment in S.ll6 which is based on· that Amendment. It reads: "The Commonwealth shall not make any laws for establishing any religion, or for imposing any re1igious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth".'

E "Charitable and charitable institutions, charitable and religious endowments and religious institutions".

Although like other secular Governments, the Indian Constitution in Article 25(1) provides for freedom of conscience and the individual's right freely to profess, practice and propagate religion, the right is expressly subject to public order, morality and health and to the other provisions in Part Ill of the Constitution. The involvement of the State with even the individual's right under Article 25(1) is exemplified by Article 25(2) by which the State is empowered to make any law. "(a) regulating or restricting. any economic. financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all

Kidangazhi Manakka/ Narayanan Nambudiripod v. State of Madras, AIR ( 1954) H Madras 385 (Vol. 41)

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [RUMAPAL,J.) 783 classes and sections of Hindus. A As a result the courts have upheld iaws which may regulate or restrict matters associated with religious practices if such practice does not form an integral part of the particular religion8 •

Freedom of religious groups or collective religious rights are provided B for under Article 26 which says that:

"Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -

(a) to establish and maintain institutions for religious and charitable purposes. C. (b) To manage its own affairs in matters of religion; (c) To own and acquire movable and immovable property; and (d) To administer such property in accordance with law.

The phrase "matters of religion" has been strictly construed so that matters not falling strictly within that phrase may be subject m control and regulation by the State. The phrase 'subject to public order, morality and health' and "in accordance with law" also envisages extensive State control over religious institutions. Article 26 (a) allows all persons of a~y religious denomination to set up an institution for a charitable purpose, and undisputedly the advancement of education is a charitable purpose. Further, the right to practise, profess and propagate religion under Article 25 if read with Article 26(a) would allow all citizens to exercise such rights through an educational institution. These rights are not limited to minorities and are available to ·'all persons'. Therefore, the Constitution does not consider the setting up of educational institutions by religious denominations or sects to impart the theology of that particular denomination as anti-secular. Having regard to the structure ofthe Constitution and its approach to 'Secularism', the observation in St. Stephens noted earlier is clearly not in keeping with 'Secularism' as provided under the Inciian Constitution. The Constitution as it stands does not proceed on the 'melting pot' theory. The Indian Constitution, rather represents a 'salad bowl' where there is homogeneity without an obliteration of identity.

The ostensible separation of religion and the State in the field of the

Ramanuja v. State ofTamil Nadu, AIR (1972) SC 1586 and Quareshi v. State of Bihar, H [1959] SCR 629

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

A States' revenue provided by Article 27 (which prohibits compulsion of an individual to pay any taxes which are specifically appropriated for the expenses for promoting or maintaining any particular religious or religious denomination) does not, however, in tenns prevent the State from making payment out of the proceeds of taxes generally collected towards the promotion or maintenance B of any particular religious or religious denomination. Indeed, Article 290(A) of the. Constitution provides for annual payment to certain Devaswom funds in the following tenns: "A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out of the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom fund; and a sum of thirteen lakhs and fifty thousand rupees shall ·be charged on, and paid out of the C Consolidated Fund of the State of Tamil Nadu every year to th~ Devaswom·· Fund established in that State for the maintenance of Hindu temples and shrines in· the territories transferred to that State on the Ist day of November, 1956, from the State .of Travancore-Cochin." This may be compared with the decision of the U.S. Supreme Court in Everson v. Board of Education, (JJO D JUS 1) where it was held that the State could not reimburse transportation charges of children attending a Roman Catholic School. ·

Article 28 in far.t brings to the fore the nature of the word •secular' used in the preamble to the Constitution and indicates clearly that there is no. wall of separation between the State and religious institutions under the Indian 1 E Constitution. No doubt Article 28(1) provides that if the institution is an educational one and it is wholly maintained by the State funds, religious instruction cannot be provided in such institution. However, Article 28( 1) does not forbid the setting up of an institution for charitable purposes by any religious denomination nor does it prohibit the running of such institution even though it may be wholly maintained by the State. What it prohibits is the giving of religious instruction. Even, this prohibition is not absolute. It is subject to the extent of sub-Article (2) of Article 28 which provides that if the educational institution has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution, then despite the prohibition in Article 28(1) and despite the fact that the education institution is in fact administered by the State, religious instruction can be imparted in such institution. Article 28(2) thus in no uncertain terms envisages that an educational institution administered by the · State and wholly maintained by the State can impart religious instruction. It recognises in Article 28(3) that there may be educational institutions imparting religious instruction according to whichever faith and conducting religious worship which can be recognised by the State and which can also receive aid

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMAPAL,J.} 785 out of State funds. A ,, Similarly, Article 28(3) provides that no individual attending any educational institution which may have been recognised by the State or is receiving State aid can be compelled 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 without such person's consent. B Implicit in this prohibition is the acknowledgement that the State can recognize and aid an educational institution giving religious instruction or conducting retigious worship. In the United States, on the other hand it has been held that State maintained institutions cannot give religious instru.ction even if such instruction is not compulsory. (See. Tllinois v. Board of Education, C (1947) (82} Law Ed. 649}.

In the ultimate analysis the Indian Constitution does not unlike the United States, subscribe to the principle of non-interference of the State in religious organisations but it remains secular in that it strives to respect all religions equally, the equality being understood in its substantive sense as D is discussed in the subsequent paragraphs.

Article 30(1) and Article 14

'Equality' which has been referred to in the Preamble is provided for in a group of Articles led by Article 14 of the Constitution which says that the E State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Although stated in absolute tenns Article 14 proceeds on the premise that such equality of treatment is required to be given to persons who are equally circumstanced. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on par. The Constitution has itself provided F for such classification in providing for special or group or class rights. Some of these are in Part III itself[Article 26, Article 29(1} and Article 30(1)] Other such Articles conferring group rights or making special provision for a particular class include Articles 336 and 337 where special provision has been .made for the Anglo-Indian Community. Further examples are to be found in Articles G 122, 212 and other Articles giving immunity from the ordinary process of the law to persons holding certain offices. Again Articles 371 to 37l(H) contain special provisions for particular States.

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

The equality, therefore, under Article 14 isnot indiscriminate. Paradoxical D as it may seem, the concept of equality permits rational or discriminating disc.rimination. Conferment of special benefits or protection or rights to a part1cular group of citizens for rational reasons is envisaged under Article 14 and is implicit in the concept of equality . There is no abridgment of the content of Article 14 thereby- but an exposition and practical application of such content. E The distinction between classes created by Parliament and classes provided for in the Constitution itself, is that the classification under the first may be subjected to judicial review and tested against the touchstone of the Constitution. But the classes originally created by the Constitution itself are F not .so subject as opposed to constitutional amendments. 10

On a plain reading of the provisions of the Article, all minorities based on re'ligion or language, shall have the right to ( 1) establish and (2) administer educational institutions of their choice. The emphasized words unambiguously and · in mandatory terms grant the right to all minorities to establish and ... G administer educational institutions. I would have thought that it is self evident and ''in any event, well settled by a series of decisions of this Court that Article 30( 1) creates a special class in the field of educational institutions - a class which is entitled to special protection in the matter of setting up and See also in Re. Kerala Education Bill, (1957]: (1959] SCR 995. 1037.

H ul See Keshavananda Bharati v. State ofKerala: AIR (1973) 1461. 1

T.M.A. PAIFOUNDATIONv. STATE OFKARNATAKA [RUMA PAL,J.] 787

administering educational institutions of their choice. This has been affirmed in the decisions of this Court where the right has been variously described as "a sacred obligation" 11 • "an absolute right" 12, "a special right" 13, "a guaranteed right" 14, "the conscience of the nation" 1\ "a befitting pledge" 16, "a special right" 17 and an "article of faith" 18

The question then is - does this special right in an admitted linguistic or religious minority to establish and administer an educational institution encompass the right to admit students belonging to that particular community?

Before considering the earlier decisions on this, a semantic analysis of the words used in Article 30(1) indicates that the right to admit students is an intrinsic part of Article 30(1).

First- Article 30(1) speaks ofthe right to set up an educational institution. An educational institution is not a structure of bricks and mortar. It is the activity which is carried on in the structure which gives it its character as an educational institution. An educational institution denotes the process or activity of education not only involving the educators but also those receiving education. It follows that the right to set up an educational institution necessarily includes not only the selection of teachers or educators but also the admission of students.

Second - Article 30(1) speaks of the right to "administer" an educational institution. If the administration of an educational institution includes and means its organisation then the organisation cannot be limited to the infrastructure for the purposes of education and exclude the persons for whom the infrastructure is set up, namely, the students. The right to admit students is, therefore, part of the right to administer an educational institution. F Third, - the benefit which has been guaranteed under Article 30 is a II In re: Kerala Education Bill, [1957-1959] SCR 995,, 1070. Rev. Sidhajbhai Subhai v. State of Bombay, (1963) 3 SCR 837. I) Rev. Father W. Proost and Ors. v. State of Bihar, [ 1969] 2 SCR 173, 192. I~ State of Kerala v. Very Rev. Mother Pronvincia/, [ 1971] I SCR 734, 740. G IS St. Xaviers College v. Gujarat, [1975] I SCR 173, 192. 16 ibid 223. 17 ibid 224. IK Lily Kurian v. Lewina. [1979}2 SCC 124, 137. H

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

A protection or benefit guaranteed to all members of the minority as a whole. What is protected is the community right which includes the right of children of the minority community to receive education and the right of parents to have their children educated in such institution. The content of the right lies not in merely managing an educational institution but doing so for the benefit of the community. Benefit can only lie in the education received. It would be B meaningless to give the minorities the right to establish and set up an organisation for giving education as an end in itself, and deny them the benefit of the education. This-would render the right a mere form without any content. The benefit to the community and the purpose of the grant of the right },s in the actual education of the members of the community. c Finally, -the words 'of their choice' is not qualified by a!ly words of limitation and would include the right to admit students of the minority's choice. Since the primary purpose of Article 30( 1) is to give the benefit to the members of the minority community in question that 'choice' cannot be ~xercised in a manner that deprives the community of the benefit. Therefore, D the choice must be directed towards fulfilling the needs of the community. How that need is met, whether by general education or otherwise, is for the community to determine.

- The interpretation is also in keeping with what this Court has consistently held. In State of Bombay v. Bombay Education Society 19, the Court said: E · • "... surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will '· be to deprive article 29(1) and article 30(1) of the greater part oftheir contents." F ln Kerala Education Bill, 1957, it was said:

"The minorities, quite understandably, regard it as essential that the education of their children should be in accordance with the teachings of their religion and they hold, quite honestly, that such an education G cannot be obtained in ordinary schools designed for all the members of the public but can only be secured in schools conducted under the influence and guidance of people well versed in the tenets of their religion and in the traditions of their culture. The minorities evidently

H I'J [ 1995] I SCR 568.

T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [RUMA PAL, J.] 789 desire that education should be imparted to the children of their community in an atmosphere congenial to the growth of~heir culture. Our Constitution makers recognised the validity of their claim and to allay their fears conferred on them the fundamental rights referred to above."

The issue of admission to minority institutions under Article 30 arose in the decision of Rev. Sidhajbhai Sabhai where the State's order reserving 80 per cent of the available seats in a minority Institution for admission of persons nominated by the Government under threat of derecognition if the reservation was not complied with, was struck down as being violative of Article 30(1). It was said that although the right of the minority may be regulated to secure the proper functioning of the institution, the regulations must be in the interest of institution and not 'in the interest of outsiders'. The view was reiterated in St. Xaviers College when it was said:

"The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their ch~ice for the purpose of giving their children the best general educatiort to make them complete men and women of the country."

In St. Stephen's College, the Court recognised that: E "The right to select students for admission is a part of administration. It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the bettennent of those who resort to it." F However, in a statement which is diametrically opposed to the earlier decisions of this Court, it was held:

"The choice of institution provided in Article 30( 1) does not mean that the minorities could establish educational institution for the benefit G of their own community people. Indeed they cannot. It was poit:Jted·. out in Re, Kerala Education Bill that the minorities cannot establish educational institution only for the benefit of their community. 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 the absence of such words it is legally impermissible to construe the H

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

A article as conferring the right on the minorities to establish educational institution for their own benefit..." (P.607)

This conclusion, in my respectful view, is based on a misreading of the decision of this Court in Kerala Education Bill. In that case, there was no question of the non-minority students being given admission overlooking the needs of the minority community. The Court was not called upon to consider the question. The underlying assumption in that case was that the only obstacle to the non-minority student getting admission into the minority institution was the State's order to that effect and not the "choice'' of the minority institution itself and a minority institution may choose to admit students not belonging to the community without shedding its minority character, provided the choice was limited to a 'sprinkling'. In fact the learned Judges in ·st. Stephens case have themselves in a subsequent portion of the judgment (p.611) taken a somewhat contradictory stand to the view quoted earlier when they said:

" ...... the minorities have the right to admit their own candidates to maintain the minority character of their institutions. That is a necessary concomitant right which flows from the right to establis.h and administer educational institution in Article 30(1). There is also a related right to the parents in the minority communities. The parents are entitled to have their children educated in institutions having an atmosphere congenial to their own religion."

The conclusion, therefore, is that the right to admission being an essential part of the constitutional guarantee under Article 30(1 ), a curtailment of that fundamental right in so far as it affect benefit of the minority community would amount to an infringement of that guarantee. F An Institution set up by minorities for educating members of the minority community does not cease to be a minority institution merely because it takes aid. There is nothing in Article 30(1) which allows the drawing of a distinction in the exercise of the right under that Article between needy minorities and affluent ones. Article 30(2) of the Constitution reinforces this when it says, _"The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language". This assumes that even after the grant of aid by the State to an educational institution under the management of the minority, the educational institution continues to be a minority educational institution. According to some, Article

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [RUMAPAL, J.] 791

30(2) merely protects the minority's right of management of the educational institution and not the students who form part of such institution. Such a reading would be contrary to Article 30(1) itself. The argument is based on the construction of the word 'management'. 'Management' may be defined as 'the process o~ managing' and is not limited to the people managing the institution. 20 In the context of Article 30(1) and having regard to the content of the right, namely, the education of the minority community, the word B 'management' in Article 30(2) must be construed to mean the 'process' and not the 'persons' in management. 'Aid' by definition means to give support or to help or assist. It cannot be that by giving 'aid' one destroys those to whom 'aid' is given. The obvious purpose of Article 30(2) is to forbid the State from refusing aid to a minority educational institution merely because it is being run as a minority educational institution. Besides Article 30(2) is an additional right conferred on minorities under Article 30( 1). It cannot be construed in a manner which is destructive of or as a limitation on Article 30(1). As has been said earlier by this Court in Rev. Sidhajbhai Sabhai, 21 clause (2) of Article 30 is only another non-discriminatory clause in the Constitution. It is a right in addition to the rights under Article 30(1) and does not operate to derogate from the provisions in clause (1 ). Wh~:n in decision after decision, this ·court has held that aid in whatever form is necessary for an educational institution to survive, it is a specious argument to say that a minority institution can preserve its rights under Article 30( 1) by refusing aid.

I would, therefore, respectfully agree with the conclusion expressed in the majority opinion that grant of aid under Article 30(2) cannot be used as a lever to take away the rights of the minorities under Article 30( 1).

Articles 29(2) and 30(1)

• F Article 29(2) says that "No citizen shall be denied admission into any educational institution maintained by the State or receiving ~id out of State funds on grounds only of religion, race, caste, language or any of them".

It is because Article 30( 1) covers the right to admit students that there is an apparent conflict between Article 29(2) and Article 30( 1). There are two G ways. of considering the relationship between Article 30( 1) and Article 29(2), the first in the context of Article 14, the second by an interpretation of Article 29(2) itself. Concise Oxford Dictionary (I Oth Edition) 864.

Supra. H

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

A Article 29(2) has not been expressed as a positive right. Nevertheless in substance it confers a right on a person not to be denied admission into an aided institution only on the basis of religion, race etc. The language of Article 29(2) reflects the language used in other non-discriminatory Articles in the Constitution namely, clauses (I) and (2) of Article 15 and clauses (1) and (2) of Article 16. As already noted both the Articles contain exceptions which permit laws being made which make special_provisions on the basis of sex, caste and race. Even in the absence of clauses (3} and (4) of Article 15 and clauses (3),(4) and 4(A) of Article 16, Parliament could have made special provisions on the forbidden bases of race, caste or sex, provided that the basis was not the only reason for creating a separate class. There would have to be an additional rational factor qualifying such basis to bring it within the concept of 'equality in fact' on the principle of 'rational classification'. For example when by law a reservation is made in favour of a member of a backward class in the matter of appointment, the reservation is no doubt made on the basis of caste. It is also true that to the extent of the reservation other \

H 21 D.N. Chanchala v. Stale of Mysore: [1971] SCR (Supp.) 608

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMAPAL,J.] 793

State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Tribes."

To the extent that legislation is enacted under Article 15 (4) making special provision in respect of a particular caste, there is a denial of admission to others who do not belong to that caste. Nevertheless, Article 15(4) does not contradict the right under Article 29(2). This is because of the use of the word 'only' in Article 29(2). Article 15(4) is based on the rationale that Schedule Castes and Tribes are not on par with other members of society in the matter of education and, therefore, special provision is to_ be made for them. It is not, therefore, only caste but this additional factor which prevents clause 15(4) from conflicting with Article 29(2) and Article 14.

Then again, under Article 337, grants are made available for the benefit of the Anglo~Indian community in respect of education, provided that any educational institution receiving s~ch grant makes available at least 40% of the annual admissions for members of communities other than the Anglo- D Indian community. Hence 60% of the admis·:;ion to an aided Anglo-Indian School is constitutionally reservable for members of the Anglo-Indian community. To the extent of such reservation, there is necessarily a denial of admission to non-Anglo Indians on the basis of race.

Similarly, the Constitution has also carved out a further exception to E Article 29(2) in the form of Article 30 ( 1) by recognising the rights of special classes in the form of minorities based on language or religion to establish and administer educational institutions of their choice. The right of the minorities under Article 30( 1) does not operate as discrimination against other citizens only on the ground of religion or language. The reason for such classification is not only religion or language per se but minorities based on F ·religion and language. Although, it is not necessary to justify a classification made by the Constitution, this fact of 'minorityship' is the obvious rationale for making a distinction, the underlying assumption being that minorities by their very numbers are in a politically disadvantaged situation and require special protection at least in the field of education. G Articles 15(4), 337 and 30 are therefore facets of substantive equality by making special provision for special classes on special considerations.

Even on general principles of interpretation, it cannot be held that Article 29(2) is absolute and in effect wipes out Article 30( I). Article 29(2) H

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

A refers to 'any educational institution'- the word "any" signifying the generality of its application. Article 30(1) on the other hand refers to 'educational institutions established and administered by minorities'. Clearly, the right under Article 30(1) is the more particular right and on the principle of'generalia ; specialibus non derogant, it must be held that Article 29(2) does not override he educational institutions even if they are aided under Article 30(1 )23 • B Then again Article 29(2) appears under the heading 'Protection of .· interests of minorities'. Whatever the historical reasons for the placement of Article .29(2) under this head, it is clear that on general principles of interpretation, the heading is at least a pointer or aid in construing the C meaning of Article 29(2). As Subba Rao, J said "if there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt."24 Therefore, if two interpretations of the words of ArtiCle 29(2) are possible, the one which is in keeping with the heading of the Artiole must be preferred. It would follow that Article 29(2) must be construed in a manner protective of minority interests and not destructive. of them. D When 'aid' is sought for by the minority institution to run its institution ... for the benefit of students belonging to that particular community, the argument on the basis of Article 29(2) is that if such an institution asks for aid it does so at the peril of depriving ~he very persons for whom aid was asked for in the first place. Apart from this anomalous result, if the taking of aid implies that the minority institution will be forced to give up or waive its right under Article '30(1), then on the principle that it is not permissible to give up or waive fundamental rights, such an interpretation is not possible. It has then been urged that Article 29(2) applies to minority institutions under Article 30(1) much in the same way that A~icle 28(1) and 28(3) do. The argument proceeds on the assumption that an educational institution set up under Article 30(1) is set up for the purposes and with the sole object of giving religious instruction. The assumption is wrong. At the outset, it may also be noted that Article 28(1) and (3) do not in tenns apply to linguistic minority educational institutions at all. Furthermore, the right to set up an educational institution in which religious instruction is to be imparted is a right which is derived from Article 26(a) which provides that every religious denomination or any section thereof shall have the right to establish and maintain institutions

~~ Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha: [1959] SuppL I SCR 806; 860, 1939 FCR 18 .

Bhinka v. Charon Singh, AIR (1959) SC 960, 966. H

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[RUMA PAL, J.] . 795 for religious and charitable purposes, and not under Article 30(1 ). Educational A institutions set up under Article 26(a) are, therefore, subject to clauses (1) and (3) of Article 28. Article 30(1) is a right additional to Article 26(a). This follows " I from the fact that it has been separately and expressly provided for and there is nothing in the language of Article 30( 1) making the right thereunder subject to Articles 25 and 26. Unless it is so construed Article 30(1) would be rendered redundant25 • Therefore, what Article 30 does is to secure the minorities the additional right to give general education. Although in a particular case a minority educational institution may combine general education with religious instruction that is done in exercise of the rights derivable from Article 26(a) and Article 30(1) and not under Article 30(1) alone. Clauses (1) and (3) of Article 28, therefore, do not apply to Article 30(1). The argument in support of reading Article 30(1) as being subject to Article 29(2) on the analogy of Article 28(l)and 28(3) is, I would think, erroneous.

For the reasons already stated I have held the right to admit minority students to a minority educational institutions is an intrinsic part of Article 30(1). To say that Article 29(2) prevails over Article 30(1) would be to infringe and to a large extent wipe out this right. There would be no distinction between a minority educational institution and. other institutions and the rights under Article 30(1) would be rendered wholly inoperational. It is no answer to say that the rights of unaided minority institutions would remain untouched because Article 29(2) does not relate to unaided institutions at all. E Whereas if one reads Article 29(2) as subject to Article 30(1) then effect can be given to both. And it is the latter approach which is to be followed in the interpretation of constitutional provisions.26 In other words, as long as the minority educational institution is being run for the benefit of and catering to the needs of the members of that community under Article 30(1), Article 29(2) would not apply. But once the minority educational institution travels F beyond the needs in the sense of requirements of its own community, at that stage it is no longer exercising rights of admission guaranteed under Article 30(1). To put it differently, when the right of admission is exercised not to meet the need of tbe minorities, the rights of admission given under Article 30(1) is to that extent removed and the institution is bound to admit students for the balance in keeping with the provisions of Article 29(2). G A simple illustration would make the position clear. 'Aid' is given to a

St. Xaviers College, [ 1975] l SCR 173, paras 7 to 12.

Sri Venkataramana Dev Aru v. State of Mysore, [1958) SCR 895, 918. H

796 SUPREME COURT REPORTS (2002) SUPP. 3. S.C.R.

A minority institution. There are 100 seats available in that institution. There are 150 eligible candidates according to the procedure evolved by the institution. Of the 150, 60 candidates belong to that particular community and 90 to other communities. The institution will be entitled, under Article 30(1) to admit all ... 60 minority students first and then fill the balance 40 seats from the other communities without discrimination in keeping with Article 29(2). B I would, therefore, not subscribe to the view that Article 29(2) operates to deprive aided minority institutions the right to admit members of their community to educational institutions established and administered by them either on any principle of interpretation or on any concept of ~quality or secularism. The next task is to consider whether this interpretation of Article 29(2) and 30( 1) is discordant with the historical context in which these Articles came to be included in the Constitution. Before referring to the historical context, it is necessary to keep in mind that what is being interpreted are constitutional provisions which "have a content and a significance that vary from age to age''. 27 Of particular significanc~ is the content of the concept of equality which has been developed by a process of judicial interpretation over the years as discussed earlier. It is also necessary to be kept in mind t that reports of the various Committees appointed by the Constituent Assembly and speeches made in the Constituent Assembly and the record of other t E proceedings of the Constituent Assembly are admissible, if at all, merely as extrinsic aids to construction and do not as such bind the Court. Ultimately, it is for this Court to say what is meant by the words of the Constitution.

The proponents of the argument that Article 29(2) over-rides Article F 30(1) have referred to excerpts from the speeches made by members of Constituent Assembly which have been quoted in support of their view. Ap~ from the doubtfulness as to the admissibility of the speeches,28 in my opinion, there is nothing in the speeches whic.h shows an intention on the part of the Constituent Assembly to abridge in any way the special protection afforded to minorities under Article 30( 1). The intention indicated in the G speeches relating to the framing of Article 29(2) appears to be an extension of the right of non-discrimination to members of the non-minority in respect 21 Cardozo: Nature of Judicial Process, p.17.

zs K.P. Verghese v. Income Tax Officer, [1982] I SCR 629, 645; Sanjeev Coke v. hltaral Coking Coal Ltd., (1983) I SCR 1000, 1029 and P. V. Narasimha Rao, AIR (1 998) SC

H 2120. 2158 = [19981 4 sec 626

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMA PAL, J.) 797 of State aided or State maintained educational institutions. It is difficult to find in the speeches any unambiguous statement which points to a determination on the part of the Constituent Assembly to curtail the special rights of the minorities under Article 30( 1). Indeed if one scrutinises the broad historical context and the sequence of events preceding the drafting of the Constitution it is clear that one of the primary objectives of the Constitution was to preserve, protect and guarantee the rights of the minorities unchanged by any rule or regulation that may be enacted by Parliament or any State legislature.

The history which preluded the independence of this country and the framing of the Constitution highlights the political context in which the Constitution was framed. and the political content of the "special" rights given to minorities. I do not intend to burden this judgment with a detailed reference to the historical run-up to the Constitution as ultimately adopted by the Constituent Assembly vis-a-vis the rights of the minorities and the importance that was placed on enacting effective and adequate ·constitutional provisicns · to safeguard their interests. This has been adequately done by Sikri, C.J. in Keshavanand Bharati v. State of Kerala29 on the basis of which the learned D Judge came to the conclusion that the rights of the minorities under the Constitution formed part of the basic structure of the Constitution and were un-amendable and inalienable.

I need only add that the rights of linguistic minorities assumed special significance and support when, much after independence, the imposition of E a 'unifying language' led not to unity but to an assertion of differences. States were formed on linguistic bases showing the apparent paradox that allowing for and protecting diff~rences leads to unity and integrity a~d enforced assimilation may lead to disaffection and unrest. The recognition of the principle of "unity in diversity" has continued to be· the hall mark of the p Constitution - a concept which has been further strengthened by affording further support to the protection of minorities on linguistic bases in 1956 by way of Articles 350-A and 350-B and in 1978 by introducing clause (1-A) in Article 30 requiring "the State, that is to say, Parliament in the case of a a Central legislation or State legislature in the case of State legislation, in making a specific law to provide for the compulsory acquisition of the property G of minority educational institutions, to ensure that the amount payable to the educational institution for the acquisition of its property will not be such as

2'1 [1973] 4 sec 225, para 168, 178. Society of St. Joseph's College v. Union of India, [2002] 1 SCC 273, 278 H

798 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A will in any manner impair the functioning of the educational institution". 30 Any judicial interpretation of the provisions of the Constitution whereby this constitutional diversity is diminished would be contrary to this avowed intent and the political considerations which underlie this intention.

The earlier decisions of this Court show that the issue of admission to B a minority educational institution almost invariably arose in the context of the State claiming that a minority institution had to be 'purely' one which was established ar.d administered by members of the minority community concerned, strictly for the members of the minority community, with the object only of preserving of the minority religion, language, script or culture. The C contention on the part of the executive then was that a minority institution could not avail of the protection of Article 30(1) if there was any non-minority element either in the establishment, administration, admission or subjects taught. It was in that context that the Court in Kera/a Education Bill held that a·'sprinkling of outsiders' being admitted into a minority institution did not result in the minority institution shedding its character and ceasing to be D a minority institution. 31 It was also in that context that the Court in St. Xaviers College (supra) came to the conclusion that a minority institution based on religion and language had the right to establish and administer educational institution for imparting general secular education and still not lose its minority character. While the effort of the Executive was to retain the 'purity' of a E minority institution and thereby to limit it, "the principle which can be discerned in the various decisions of this Court is that the catholic approach which led to the drafting of the provisions relating to minority rights should not be set at naught by narrow judicial interpretation".32

The 'liberal, generous and sympathetic approach' of this Court towards p the rights of the minorities has been somewhat reversed in the St. Stephens case. Of course, this was the first decision of this Court which squarely dealt with the inter-relationship of Article 29(2) and Article 30(1). None of the earlier cited decisions did.

The decision of this Court in Champakam Dorairajan v. State of G Madras)) cannot be construed as an authority for the proposition that Article 29(2) overrides the constitutional right guaranteed to the minorities under

[l975] I SCR 173, 234.

[1951] SCR 525.

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMAPAL,J.] 799

Article 30( 1), as Article 30( I) was not at all mentioned in the entire course of the judgment. Similarly, the Court in State of Bombay v. Bombay Education Sociel)? 4 was not called upon to consider a situation of conflict ·between Article 30(1) and 29(2). The Bombay Education Society, was in fact directly concerned with Article 337 and an Anglo-Indian educational institution. In that background, when it was suggested that Article 29(2) was intended to benefit minorities only, the Court negatived the submission as it would amount to a 'double protection', "double" because an Anglo-Indian citizen would then have not only the protection of Article 337 by way of a 60% reservation but also the benefit of Article 29(2). It was not held by the Court that Article 29(2) would override Article 337.

There is thus no question of striking a balance between Article 29(2} c and 30( 1) as if they were two competing rights. Where once the Court has held:

"Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classifi~ation for differential tr~atment having nexus to the constitutional permissible objects."

and where Article 29(2) is nothing more than a principle of equality, and when "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" ~,3

it must follow that Article 29(2) is subject to the constitutional classification of minorities under Article 30(1 ).

Finally, there appears be an inherent contradiction in the statement of the Court in St. Stephens that:

"the minority aided educational institutions are entitled to prefer t_heir community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per

[1955] SCR 568.

'5 Ahmedabad St. Xaviers College. H