Case Note: Constitution of India - Articles 14, 15, 25, 26, 28, 29 (2) and 30--Education--Right of minorities to establish

and administer educational institutions of their choice--Scope of Article 30 (1)--Meaning of minority--Whether Article 29 (2) and Article 30 (1) applies to aided/ unaided minority educational institutions?--How and when State can regulate minority educational institutions?-Majority answering questions as follows -- S. S. Mohammed Quadri, J. concurring with majority except on interplay between Articles 29 (2) and 30 (1) and concurring with Ruma Pal, J.--Ruma Pal, J. differing from majority on its view on Articles 29 (2) and 30 (1) and also on determination of minority status with reference to State--S. N. Variava, J. concurring with majority, differing from S. S. Mohammed Quadri and Ruma Pal, JJ. and also from majority on final conclusion on balancing. B. N. Kirpal, C.J.I. (Majority view) : (1) Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise. (2) Article 30 (1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30. (3) Admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or university, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30 (1) are not substantially impaired and further the citizens' rights under Article 29 (2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The concerned State Government has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists. (4) A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The

procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. (5) While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the concerned university or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society. (6) So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee. (7) The basic ratio laid down by the Supreme Court in the St. Stephen's College case, (1992) 1 SCC 558, is correct, as indicated in this judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities. (8) The scheme framed by the Supreme Court in Unni Krishnan's case, (1993) 1 SCC 645 and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. (9) The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level upto the postgraduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove.

The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19 (1) (g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19 (1) (g) and 26, but this right is subject to the provisions of Articles 19 (6) and 26 (a). Ruma Pal, J. (Minority view) : (1) The protection under Article 30 is against any measure, legislative or otherwise, which infringes the rights granted under that Article. The right is not claimed in a vacuum - it is claimed against a particular legislative or executive measure and the question of minority status must be judged in relation to the offending piece of legislation or executive order. If the source of the infringing action is the State, then the protection must be given against the State and the status of the individual or group claiming the protection must be determined with reference to the territorial limits of the State. If however the protection is limited to State action, it will leave the group which is otherwise a majority for the purpose of State Legislation, vulnerable to Union Legislation which operates on a national basis. When the entire nation is sought to be affected, surely the question of minority status must be determined with reference to the country as a whole. (2) The right to admit minority students to a minority educational institution is an intrinsic part of Article 30 (1). To say that Article 29 (2) 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. 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. In other words, as long as the minority educational institution is being run for the benefit of and catering to the needs of the members of that community under Article 30 (1), Article 29 (2) would not apply. But once the minority educational institution travels beyond the needs in the sense of requirements of its own community, at that stage it is no longer exercising rights of admission guaranteed under Article 30 (1). To put it differently, when the right of admission is exercised not to meet the need of the 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). Article 29 (2) pertains to the right of an individual and is not a class right. It would, therefore, apply when an individual is denied admission into any educational institution maintained by the State or receiving aid from the State funds, solely on the basis of the ground of religion, race, caste, language or any of them. It does not operate to create a class interest or right in the sense that any educational institution has to set apart for non-minorities as a class and without reference to any individual applicant, a fixed percentage of available seats. Unless Articles 30 (1) and 29 (2) are allowed to operate in their separate fields then what started with the voluntary 'sprinkling' of outsiders, would become a major inundation and a large chunk of the right of an aided minority institution to operate for the benefit of the community it was set up to serve, would be washed away. Whether there has been a violation of Article 29 (2) in refusing admission to a non-minority student in a particular case must be resolved as it has been in the past by recourse to the Courts. It must be emphasised that the right under Article 29 (2) is an individual one. If the non-minority student is otherwise eligible for admission, the decision on the issue of refusal would depend on whether the minority institution is able to establish that the refusal was only because it was satisfying the requirements of its own community under Article 30 (1). I cannot, therefore, subscribe to the view expressed by the majority that the requirement of the minority community for admission to a minority educational institution should be left to the State or any other Governmental authority to determine. If the executive is given the power to determine the requirements of the minority community in the matter of admission to its educational institutions,

we would be subjecting the minority educational institution in question to an "intolerable encroachment" on the right under Article 30 (1) and let in by the back door as it were, what should be denied entry altogether. S. N. Variava, J. : (1) Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since re-organization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise. (2) Article 30 (1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30. (3) Admission of students to unaided minority educational institutions, viz., schools where scope for merit based selection is practically nil, cannot be regulated by the State or the university (except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards). Right to admit students being an essential facet of right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right in respect of unaided minority institutions provided however that the admission to the unaided educational institutions is on transparent basis and the merit is the criteria. The right to administer, not being an absolute one, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof and it is more so, in the matter of admissions to undergraduate colleges and professional institutions. The moment aid is received or taken by a minority educational institution, it would be governed by Article 29 (2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In other words it cannot then give preference to students of its own community. Observance of inter se merit amongst the applicants must be ensured. In the case of aided professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. (4) A minority institution may have its own procedure and method of admission as well as selection of students, but such procedure must be fair and transparent and selection of students in professional and higher educational colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to mal-administration. Even an unaided minority institution, ought not to ignore merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. (5) Whilst giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State. The merit may be determined either through a common entrance test conducted by the university or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society.

(6) So far as the statutory provisions regulating the facets of administration is concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of management over the staff, Government/university representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed. There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to. The extent of regulations will not be the same for aided and unaided institutions. (7) The ratio laid down in St. Stephen's College case (supra) is not correct. Once State aid is taken and Article 29 (2) comes into play, then no question arises of trying to balance Articles 29 (2) and 31. Article 29 (2) must be given its full effect. (8) The scheme framed by this Court in Unni Krishnan's case (supra) means institutions that impart education and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. (9) The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level. It includes professional education. The expression "educational institutions" means institution that impart education. The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19 (1) (g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19 (1) (g) and 26, but this right will be subject to the provisions of Articles 19 (6) and 26 (a). However, minority institutions will have a right to admit students belonging to the minority group. Per Syed Shah Mohammed Quadri, J. (Minority view) In his separate judgment--See p. 3427, infra : 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.

The minority educational institutions established and administered under Article 30(1) for the benefit of the students of their community have the right 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) 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). 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 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 seeking admis-sion in educational institutions estab-lished and administered by poor minorities which are aided. On the institutions deciding to take aid from the State, the right of minority stu-dents to seek admission in such insti-tutions 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 over the general right of non-minority students under Article 29(2). So having 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 appears that on grant of aid by the State, Article 29(2) does not control Article 30(1). 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 is foremost 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 students is over that in regard to the remaining seats that the institution 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 nonminority students of their choice in the left over seats in each year as Article 29(2) does not override Article 30(1). 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). 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. 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 will be impermissible. Right of minorities to admit students of non-minority of their choice in their educational institutions set up under Article 30 is one thing but thrusting students of non-minority on minority educational institutions, whatever may be the percentage, irrespective of and prejudicial to the need of the minority in such institution, is entirely another. It is the former and

not the latter course of action which will be in conformity with the scheme of clause (2) of Article 29 and clauses (1) and (2) of Article 30 of the Constitution.