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T M
A Pai Foundation and others Vs State of Karnataka |
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PETITIONER: T.M.A.Pai Foundation & Ors.
RESPONDENT: State of Karnataka & Ors.
DATE
OF JUDGMENT: 31/10/2002
BENCH: B.N.KIRPAL CJI & G.B.PATTANAIK & V.N.KHARE & S.RAJENDRA BABU
& S.S.M.QUADRI
JUDGMENT:
BHAN & ARIJIT PASAYAT
&
JUDGMENT
WITH
Writ Petition (Civil) Nos. 252 of 1979, 54-57, 2228 of 1981,
2460, 2582, 2583-84,3362, 3517, 3602, 3603, 3634, 3635, 3636,
8398, 8391, 5621, 5035, 3701, 3702,3703, 3704, 3715, 3728, 4648,
4649, 2479, 2480, 2547 and 3475 of 1982, 7610,4810, 9839 and
9683-84 of 1983, 12622-24 of 1984, 119 and 133 of 1987, 620 of
1989, 133 of 1992, 746, 327, 350, 613, 597, 536, 626, 444, 417,
523, 474, 485, 484,355, 525, 469, 392, 629, 399, 531, 603, 702,
628, 663, 284, 555, 343, 596, 407, 737,738, 747, 479, 610, 627,
685, 706, 726, 598, 482 and 571 of 1993, 295, 764 and D. No.
1741 of 1994, 331, 446 and 447 of 1995, 364 and 435 of 1996,
456, 454, 447 and 485 of 1997, 356, 357 and 328 of 1998, 199,
294, 279, 35, 181, 373, 487 and 23 of 1999, 561 of 2000, 6 and
132 of 2002, Civil Appeal Nos. 1236-1241 and 2392 of 1977, 687
of 1976, 3179, 3180, 3181, 3182, 1521-56, 3042-91 of 1979,
2929-31, 1464 of 1980, 2271 and 2443-46 of 1981, 4020, 290 and
10766 of 1983, 5042 and 5043 of 1989, 6147 and 5381 of 1990, 71,
72 and 73 of 1991, 1890-91, 2414 and 2625 of 1992, 4695-4746,
4754-4866 of 1993, 5543-5544 of 1994, 8098- 8100 and 11321 of
1995, 4654-4658 of 1997, 608, 3543 and 3584-3585 of 1998,
5053-5054 of 2000, 5647, 5648-5649, 5650, 5651, 5652, 5653-5654,
5655, 5656 of 2001 and 2334 of 2002, S.L.P. (C) Nos. 9950 and
9951 of 1979, 11526 and 863 of 1980, 12408 of 1985, 8844 of
1986, 12320 of 1987, 14437, 18061-62 of 1993, 904-05 and 11620
of 1994, 23421 of 1995, 4372 of 1996, 10360 and 10664 of 1997,
1216, 9779-9786, 6472-6474 and 9793 of 1998, 5101, 4480 and 4486
of 2002 T.C. (Civil) No. 26 of 1990 and T.P. (Civil) Nos.
1013-14 of 1993.
DELIVERED BY:
B.N.KIRPAL, CJI & S.S.M.QUADRI & S.N.VARIAVA & V.N.KHARE & RUMA
PAL
Kirpal, C.J.
1. India is a land of diversity -- of
different castes, peoples, communities, languages, religions
and culture. Although these people enjoy complete political
freedom, a vast part of the multitude is illiterate and
lives below the poverty line. The single most powerful tool
for the upliftment and progress of such diverse communities
is eduction. The state, with its limited resources and
slow-moving machinery, is unable to fully develop the genius
of the Indian people very often t he impersonal education
that is imparted by the state, devoid of adequate material
content that will make the students self-reliant only
succeeds in producing potential pen-pushers, as a result of
which sufficient jobs are not available.
2. It is in this scenario where there is a
lack of quality education and adequate number of schools and
colleges that private educational institutions have been
established by educationists, philanthropists and religious
and linguistic minorities. Their grievance is that the
necessary and unproductive load on their back in the form of
governmental control, by way of rules and regulations, has
thwarted the progress of quality education. It is their
contention that the government must get off their back, and
that they should be allowed to provide quality education
uninterrupted by unnecessary rules and regulations, laid
down by the bureaucracy for its own self-importance. The
private educational institutions, both aided and unaided,
established by minorities and non- minorities, in their
desire to break free of the unnecessary shackles put on
their functioning as modern educational institutions and
seeking to impart quality education for the benefit of the
community for whom they were established, and others, have
filed the present writ petitions and appeals asserting their
right to establish and administer educational institutions
of their choice unhampered by rules and regulations that
unnecessarily impinge upon their autonomy.
3. The hearing of these cases has had a
chequered history. Writ Petition No. 350 of 1993 filed by
the Islamic Academy of Education and connected petitions
were placed before a Bench of 5 Judges. As the Bench was
prima facie of the opinion that Article 30 did not clothe a
minority educational institution with the power to adopt its
own method of selection and the correctness of the decision
of this Court in St. Stephen's
College v. University of Delhi was doubted, it was
directed that the questions that arose should be
authoritatively answered by a larger Bench. These cases were
then placed before a Bench of 7 Judges. The questions framed
were recast and on 6th February, 1997, the Court directed
that the matter be placed a Bench of at least 11 Judges, as
it was felt that in view of the Forty-Second Amendment to
the Constitution, whereby "education" had been included in
Entry 25 of List III of the Seventh Schedule, the question
of who would be regarded as a "minority" was required to be
considered because the earlier case laws related to the
pre-amendment era, when education was only in the State
List. When the cases came up for hearing before an eleven
Judge Bench, during the course of hearing on 19th March,
1997, the following order was passed:-
"Since a doubt has arisen during the course
of our arguments as to whether this Bench would feel itself
bound by the ratio propounded in -- In Re Kerala Education
Bill, 1957 (1959 SCR 955) and the Ahmedabad St. Xaviers
College Society v. State of Gujarat, , it is clarified that
this sized Bench would not feel itself inhibited by the
views expressed in those cases since the present endeavour
is to discern the true scope and interpretation of Article
30(1) of the Constitution, which being the dominant question
would require examination in its pristine purity. The factum
is recorded."
4. When the hearing of these cases
commended, some questions out of the eleven referred for
consideration were reframed. We propose to give answers
to these questions after examining the rival contentions
on the issues arising therein.
5. On behalf of all these institutions,
the learned counsels have submitted that the
Constitution provides a fundamental right to establish
and administer educational institutions. With regard to
non-minorities, the right was stated to be contained in
Article 19(1)(g) and/or Article 26, while in the case of
linguistic and religious minorities, the submission was
that this right was enshrined and protected by Article
30. It was further their case that private educational
institutions should have full autonomy in their
administration. While it is necessary for an educational
institution to secure recognition or affiliation, and
for which purpose rules and regulations or conditions
could be prescribed pertaining to the requirement of the
quality of education to be provided, e.g.,
qualifications of teachers, curriculum to be taught and
the minimum facilities which should be available for the
students, it was submitted that the state should not
have a right to interfere or lay down conditions with
regard to the administration of those institutions. In
particular, objection was taken to the nominations by
the state on the governing bodies of the private
institutions, as well as to provisions with regard to
the manner of admitting students, the fixing of the fee
structure and recruitment of teachers through state
channels.
6. The counsels for these educational
institutions, as well as the Solicitor General of India,
appearing on behalf of the Union of India, urged that
the decision of this Court in
Unni
Krishnan, J.P. and Ors. v. State of Andhra Pradesh and
Ors. case required reconsideration. It was submitted
that the scheme that had been framed in Unni Krishnan's
case had imposed unreasonable restrictions on the
administration of the private educational institutions,
and that especially in the case of minority
institutions, the right guaranteed to them under Article
30(1) stood infringed. It was also urged that the object
that was sought to be achieved by the scheme was, in
fact, not achieved.
7. On behalf of the private minority
institutions, it was submitted that on the correct
interpretation of the various provisions of the
Constitution, and Articles 29 and 30 in particular, the
minority institutions have a right to establish and
administer educational institutions of their choice. The
use of the phrase "of their choice" in Article 30(1)
clearly postulated that the religious and linguistic
minorities could establish and administer any type of
educational institution, whether it was a school, a
degree college or a professional college; it was argued
that such an educational institution is invariably
established primarily for the benefit of the religious
and linguistic minority, and it should be open to such
institutions to admit students of their choice. While
Article 30(2) was meant to ensure that these minority
institutions would not be denied aid on the ground that
they were managed by minority institutions, it was
submitted that no condition which curtailed or took away
the minority character of the institution while granting
aid could be imposed. In particular, it was submitted
that Article 29(2) could not be applied or so
interpreted as to completely obliterate the right of the
minority institution to grant admission to the students
of its own religion or language. It was also submitted
that while secular laws relating to health, town
planning, etc., would be applicable, no other rules and
regulations could be framed that would in any way
curtail or interfere with the administration of the
minority educational institution. It was emphasized by
the learned counsel that the right to administer an
educational institution included the right to constitute
a governing body, appoint teachers and admit students.
It was further submitted that these were the essential
ingredients of the administration of an educational
institution, and no fetter could be put on the exercise
of the right to administer. It was conceded that for the
purpose of seeking recognition, qualifications of
teachers could be stipulated, as also the qualification
of the students who could be admitted; at the same time,
it was argued that the manner and mode of appointment of
teachers and selection of students had to be within the
exclusive domain of the autochthonal institution.
8. On behalf of the private non-minority
unaided educational institutions, it was contended that
since secularism and equality were part of the basic
structure of the Constitution the provisions of the
Constitution should be interpreted so that the right of
the private non-minority unaided institutions were the
same as that of the minority institutions. It was
submitted that while reasonable restrictions could be
imposed under Article 19(6), such private institutions
should have the same freedom of administration of an
unaided institution as was sought by the minority
unaided institutions.
9. The learned Solicitor General did not
dispute the contention that the right in establish an
institution had been confined on the non-minorities by
Articles 19 and 26 and on the religious and linguistic
minorities by Article 30. He agreed with the submission
of the counsels for the appellants that the Unni
Krishnan decision required reconsideration, and that the
private unaided educational institutions were entitled
to greater autonomy. He, however, contended that Article
29(2) was applicable to minority institutions, and the
claim of the minority institutions that they could
preferably admit students of their own religion or
language to the exclusion of the other communities was
impermissible. In other words, he submitted that Article
29(2) made it obligatory even on the minority
institutions not to deny admission on the ground of
religion, race, caste, language or any of them.
10. Several States have totally disagreed
with the arguments advanced by the learned Solicitor
General with regard to the applicability of Article
29(2) and 30(1). The States of Madhya Pradesh,
Chattisgarh and Rajasthan have submitted that the words
"their choice" in Article 30(1) enabled the minority
institutions to admit members of the minority community,
and that the inability of the minority institutions to
admit others as a result of the exercise of "their
choice" would not amount to a denial as contemplated
under Article 29(2). The State of Andhra Pradesh has not
expressly referred to the inter-play between Article
29(2) and Article 30(1), but has stated that "as the
minority educational institutions are intended to
benefit the minorities, a restriction that at least 50
per cent of the students admitted should come from the
particular minority, which has established the
institution should be stipulated as a working rule", and
that an institution which fulfilled the following
conditions should be regarded as minority educational
institutions:
1. All the office bearers, members of
the executive committee of the society must
necessarily belong to the concerned
religious/linguistic minority without exception.
2. The institution should admit only
the concerned minority candidates to the extent of
sanctioned intake permitted to be filed by the
respective managements.
and that the Court "ought to permit
the State to regulate the intake in minority
educational institutions with due regard to the need
of the community in the area which the institution
is intended to serve. In no case should such intake
exceed 50% of the total admissions every year."
11. The State of Kerala has
submitted, again without express reference to
Article 29(2), "that the constitutional right of the
minorities should be extended to professional
education also, but while limiting the right of the
minorities to admit students belonging to their
community to 50% of the total intake of each
minority institution".
12. The State of Karnataka has
submitted that "aid is not a matter of right but
receipt thereof does not in any way dilute the
minority character of the institution. Aid can be
distributed on non-discriminatory conditions but in
so far as minority institutions are concerned, their
core rights will have to be protected.
13. On the other hand, the States of
Tamil Nadu, Punjab, Maharashtra, West Bengal, Bihar
and Uttar Pradesh have submitted that Article 30(1)
is subject to Article 29(2), arguing that a minority
institution availing of state aid loses the right to
admit members of its community on the basis of the
need of the community.
14. The Attorney General, pursuant to
the request made by the court, made submissions on
the constitutional issues in a fair and objective
manner. We recorded our appreciation for the
assistance rendered by him and the other learned
counsel.
15. We may observe here that the
counsels were informed that it was not necessary for
this Bench to decide four of the questions framed
relating to the issue of who could be regarded as
religious minorities; no arguments were addressed in
respect thereto.
16. From the arguments aforesaid,
five main issues arise for consideration in these
cases, which would encompass all the eleven
questions framed that are required to be answered.
17. We will first consider the
arguments of the learned counsels under these heads
before dealing with the questions now remaining to
be answered.
1. IS THERE A FUNDAMENTAL RIGHT
TO SET UP EDUCATIONAL INSTITUTION AND IF SO,
UNDER WHICH PROVISION?
18. With regard to the
establishment of educational institutions, three
Articles of the Constitution come into play.
Article 19(1)(g) gives the right to all the
citizens to practice any profession or to carry
on any occupation, trade or business; this right
is subject to restrictions that may be placed
under Article 19(6). Article 26 gives the right
to every religious denomination to establish and
maintain an institution for religious purposes,
which would include an educational institution.
Article 19(1)(g) and Article 26, therefore,
confer rights on all citizens and religious
denominations to establish and maintain
educational institutions. There was no serious
dispute that the majority community as well as
linguistic and religious minorities would have a
right under Article 19(1) (g) and 26 to
establish educational institutions. In addition,
Article 30(1), in no uncertain terms, gives the
right to the religious and linguistic minorities
to establish and administer educational
institutions of their choice.
19. We will first consider the
right to establish and administer an educational
institution under Article 19(1)(g) of the
Constitution and deal with the right to
establish educational institutions under Article
26 and 30 in the next part of the judgment while
considering the rights of the minorities.
20. Article 19(1)(g) employs four
expressions, viz., profession, occupation, trade
and business. Their fields may overlap, but each
of them does have a content of its own.
Education is per se regarded as an activity that
is charitable in nature [See
The State of Bombay v. R.M.D. Chamarbaugwala,.
Education has so far not been regarded as a
trade or business where profit is the motive.
Even if there is any doubt about whether
education is a profession or not, it does appear
that education will fall within the meaning of
the expression "occupation". Article 19(1) (g)
uses the four expressions so as to cover all
activities of a citizen in respect of which
income or profit is generated, and which can
consequently be regulated under Article 19(6).
In Webster's Third New International Dictionary
at page 1650, "occupation" is, inter alia ,
defined as "an activity in which one engages" or
"a craft, trade, profession or other means of
earning a living".
21. In Corpus Juris Secundum,
Volume LXVII, the word "occupation" is defined
as under:-
"The word "occupation" also is
employed as referring to that which occupies
time and attention; a calling; or a trade; and
it is only as employed in this sense that the
word is discussed in the following paragraphs.
There is nothing ambiguous about the word
"occupation" as it is used in the sense of
employing one's time. It is a relative term, in
common use with a well-understand meaning, and
very broad in its scope and significance. It is
described as a generic and very comprehensive
term, which includes every species of the genus,
and compasses the incidental, as well as the
main, requirements of one's vocation., calling,
or business. The word "occupation" is variously
defined as meaning the principal business of
one's life; the principal or usual business in
which a man engages; that which principally
takes up one's time, thought, and energies; that
which occupies or engages the time and
attention; that particular business, profession,
trade, or calling which engages the time and
efforts of an individual; the employment in
which one engages, or the vocation of one's
life; the state of being occupied or employed in
any way; that activity in which a person,
natural or artificial, is engaged with the
element of a degree of permanency attached."
22. A Five Judge Bench in Sodan
Singh and Ors. v. New Delhi Municipal Committee
and Ors. at page 174, para 28, observed as
follows: ".....The word occupation has a wide
meaning such as any regular work, profession,
job, principal activity, employment, business or
a calling in which an individual is
engaged.....The object of using four analogous
and overlapping words in Article 19(1)(g) is to
make the guaranteed right as comprehensive as
possible to include all the avenues and modes
through which a man may earn his livelihood. In
a nutshell the guarantee takes into its fold any
activity carried on by a citizen of India to
earn his living.....".
23. In Unni Krishnan's case, at
page 687, para 63, while referring to education,
it was observed as follows:-
".....It may perhaps fall under
the category of occupation provided no
recognition is sought from the State or
affiliation from the University is asked on the
basis that its a fundamental right....."
24. While the conclusion that
"occupation" comprehends the establishment of
educational institutions is correct, the proviso
in the aforesaid observation to the effect that
this is so provided no recognition is sought
from the state or affiliation from the concerned
university is, with the utmost respect,
erroneous. The fundamental right to establish an
educational institution cannot be confused with
the right to ask for recognition of affiliation.
The exercise of a fundamental right may be
controlled in a variety of ways. For example,
the right to carry on a business does not entail
the right to carry on a business at a particular
place. The right to carry on a business may be
subject to licensing laws so that a denial of
the licence presents a person from carrying on
that particular business. The question of
whether there is a fundamental right or not
cannot be dependent upon whether it can be made
the subject matter of controls.
25. The establishment and
running of an educational institution where
a large number of persons are employed as
teachers or administrative staff, and an
activity is carried on that results in the
imparting of knowledge to the students, must
necessarily be regarded as an occupation,
even if there is no element of profit
generation. It is difficult to comprehended
that education, per se, will not fall under
any of the four expressions in Article
19(1)(g). "Occupation" would be an activity
of a person undertaken as a means of
livelihood or a mission in life. The above
quoted observations in Sodan Singh's case
correctly interpret the expression
"occupation" in Article 19(1)(g).
26. The right to establish
and maintain educational institutions may
also be sourced to Article 26(a), which
grants, in positive terms, the right to
every religious denomination or any section
thereof to establish and maintain
institutions for religious and charitable
purposes, subject to public order, morality
and health. Education is a recognized head
of charity. Therefore, religious
denominations or sections thereof, which do
not fall within the special categories
carved out in Article 29(1) and 30(1), have
the right to establish and maintain
religious and educational institutions. This
would allow members belonging to any
religious denomination, including the
majority religious community, to set up an
educational institution. Given this, the
phrase "private educational institution" as
used in this judgment would include not only
those educational institutions set up by the
secular persons or bodies, but also
educational institutions set up by religious
denominations; the word "private" is
used in contradistinction to
government institutions.
2. DOES UNNI KRISHNAN'S CASE
REQUIRE RECONSIDERATION?
27. In the case of
Mohini Jain (Miss) v. State of Karnataka and
Ors., the challenge was to a
notification of June 1989, which provided
for a fee structure, whereby for government
seats, the tuition fee was Rs. 2, 000 per
annum, and for students from Karnataka, the
fee was Rs. 25,000 per annum, while the fee
for Indian students from outside Karnataka,
under the payment category, was Rs. 60,000
per annum. It had been contended that
charging such a discriminatory and high fee
violated constitutional guarantees and
rights. This attack was sustained, and it
was held that there was a fundamental right
to education in every citizen, and that the
state was duty bound to provide the
education, and that the private institutions
that discharge the state's duties were
equally bound not to charge a higher fee
than the government institutions. The Court
then held that any prescription of fee in
excess of what was payable in government
colleges was a capitation fee and would,
therefore, be illegal. The correctness of
this decision was challenged in Unni
Krishnan's case, where it was contended that
if Mohini Jain's ratio was applied the
educational institutions would have to be
closed down, as they would be wholly
unviable without appropriate funds, by way
of tuition fees, from their students.
28. We will now examine the
decision in Unni Krishnan's case. In this
case, this Court considered the conditions
and regulations, if any, which the state
could impose in the running of private
unaided/aided recognized or affiliated
educational institutions conducting
professional courses such a medicine,
engineering, etc. The extent to which the
fee could be charged by such an institution,
and the manner in which admissions could be
granted was also considered. This Court held
that private unaided recognized/affiliated
educational institutions running
professional courses were entitled to charge
a fee higher than that charged by government
institutions for similar courses, but that
such a fee could not exceed the maximum
limit fixed by the state. It held that
commercialization of eduction was not
permissible, and "was opposed to public
policy and Indian tradition and therefore
charging capitation fee was illegal." With
regard to private aided
recognized/affiliated educational
institutions, the Court upheld the power of
the government to frame rules and
regulations in matter of admission and fees,
as well as in matters such a recruitment and
conditions of service of teachers and staff.
Though a question was raised as to whether
the setting up of an educational institution
could be regarded as a business, profession
or vocation under Article 19(1)(g), this
question was not answered. Jeevan Reddy, J.,
however, at page 751, para 197, observed as
follows:-
".....While we do not wish to
express any opinion on the question whether
the right to establish an educational
institution can be said to be carrying on
any "occupation" within the meaning of
Article 19(1)(g), - perhaps, it is -- we are
certainly of the opinion that such activity
can neither be a trade or business nor can
it be a profession within the meaning of
Article 19(1)(g). Trade or business normally
connotes an activity carried on with a
profit motive. Education has never been
commerce in this country....."
29. Reliance was placed on a
decision of this Court in
Bangalore Water Supply and Sewerage Board v.
A. Rajappa and Ors., wherein it had been
held that educational institutions would
come within the expression "industry" in the
Industrial Disputes Act, and that,
therefore, education would come under
Article 19(1)(g). But the applicability of
this decision was distinguished by Jeevan
Reddy, J., observing that "we do not think
the said observation (that education as
industry) in a different context has any
application here". While holding, on an
interpretation of Articles 21, 41, 45 and
46, that a citizen who had not completed the
age of 14 years had a right to free
education, it was held that such a right was
not available to citizens who were beyond
the age of 14 years. It was further held
that private educational institutions merely
supplemented the effort of the state in
educating the people. No private educational
institution could survive or subsist without
recognition and/or affiliation granted by
bodies that were the authorities of the
state. In such a situation, the Court held
that it was obligatory upon the authority
granting recognition/affiliation to insist
upon such conditions as were appropriate to
ensure not only an education of requisite
standard, but also fairness and equal
treatment in matter of admission of
students. The Court then formulated a scheme
and directed every authority granting
recognition/affiliation to impose that
scheme upon institutions seeking
recognition/affiliation, even if they were
unaided institutions. The scheme that was
framed, inter alia, postulated (a) that a
professional college should be established
and/or administered only by a Society
registered under the Societies Registration
Act, 1860, or the corresponding Act of a
State, or by a Public Trust registered under
the Trusts Act, or under the Wakfs Act, and
that no individual, firm, company or other
body of individuals would be permitted to
establish and/or administer a professional
college (b) that 50% of the seats in every
professional college should be filed by the
nominees of the Government or University,
selected on the basis of merit determined by
a common entrance examination, which will be
referred to as "free seats"; the remaining
50% seats ("payment seats") should be filled
by those candidates who pay the fee
prescribed therefore, and the allotment of
students against payment seats should be
done on the basis of inter se merit
determined on the same basis as in the case
of free seats (c) that there should be no
quota reserved for the management or for any
family, caste or community, which may have
established such a college (d) that it
should be open to the professional college
to provide for reservation of sets for
constitutionally permissible classes with
the approval of the affiliating university
(e) that the fee chargeable in each
professional college should be subject to
such a ceiling as may be prescribed by the
appropriate authority or by a competent
court (f) that every state government should
constitute a committee to fix the ceiling on
the fees chargeable by a professional
college or class of professional colleges,
as the case may be. This committee should,
after hearing the professional colleges, fix
the fee once every three years or at such
longer intervals, as it may think
appropriate(g) that it would be appropriate
for the University Grants Commission to
frame regulators under its Act regulating
the fees that the affiliated colleges
operating on a no grant-in-aid basis were
entitled to charge. The AICTE, the Indian
Medical Council and the Central Government
were also given similar advice. The manner
in which the seats to be filled on the basis
of the common entrance test was also
indicated.
30. The counsel for the
minority institutions, as well as the
Solicitor General, have contended that
the scheme framed by this Court in Unni
Krishnan's case was not warranted. It
was represented to us that the cost
incurred on educating a student in an
unaided professional college was more
than the total fee, which is realized on
the basis of the formula fixed in the
scheme. This had resulted in revenue
shortfalls. This Court, by interim
orders subsequent to the decision in
Unni Krishnan's case, had permitted,
within the payment seats, some
percentage of seats to be allotted to
Non- Resident Indians, against payment
of a higher amount as determined by the
authorities. Even thereafter, sufficient
funds were not available for the
development of those educational
institutions. Another infirmity which
was pointed out was that experience has
shown that most of the "free seats" were
generally occupied by students from
affluent families, while students from
less affluent families were required to
pay much more to secure admission to
"payment seats". This was for the reason
that students from affluent families had
had better school education and the
benefit of professional coaching
facilities and were, therefore, able to
secure higher merit positions in the
common entrance test, and thereby
secured the free seats. The education of
these more affluent students was in a
way being cross-subsidized by the
financially poorer students who because
of their lower position in the merit
list, could secure only "payment seats".
It was also submitted by the counsel for
the minority institutions that Unni
Krishnan's case was not applicable to
the minority institutions, but that
notwithstanding this, the scheme to
evolved had been made applicable to them
as well.
31. Counsel for the
institutions, as well as the Solicitor
General, submitted that the decision in
Unni Krishnan's case, insofar as it had
framed the scheme relating to the grant
of admission and the fixing of the fee,
was unreasonable and invalid. However,
its conclusion that children below the
age of 14 had a fundamental right to
free education did not call for any
interference.
32. It has been submitted
by the learned counsel for the parties
that the implementation of the scheme by
the States, which have amended their
rules and regulations, has shown a
number of anomalies. As already noticed,
50% of the seats are to be given on the
basis of merit determined after the
conduct of a common entrance test, the
rate of fee being minimal. The "payment
seats" which represent the balance
number, therefore, cross- subsidize the
"free seats". The experience of the
educational institutions has been that
students who come from private schools,
and who belong to more affluent
families, are able to secure higher
positions in the merit list of the
common entrance test, and are thus able
to seek admission to the "free seats".
Paradoxically, it is the students who
come from less affluent families, who
are normally able to secure, on the
basis of the merit list prepared after
the common entrance test, only "payment
seats".
33. It was contended by
petitioned counsel that the
implementation of the Unni Krishnan
scheme has in fact (1) helped the
privileged from richer urban families,
even after they ceased to be
comparatively meritorious, and (2)
resulted in economic losses for the
educational institutions concerned, and
made them financially unviable. Data in
support of this contention was placed on
record in an effort to persuade this
Court to hold that the scheme had failed
to achieve its object.
34. Material has also
been placed on the record in an effort
to show that the
total fee realized from
the fee fixed for "free seats" and the
"payment seats" is actually less than
the amount of expense that is incurred
on each student admitted to the
professional college. It is because
there was a revenue shortfall that this
Court had permitted in NRI quota to be
carved out of the 50% payment seats for
which charging higher fee was permitted.
Directions were given to UGC, AICTE,
Medical Council of India and Central and
State governments to regulate or fix a
ceiling on fees, and to enforce the same
by imposing conditions of
affiliation/permission to establish and
run the institutions.
35. It appears to us that
the scheme framed by this Court and
thereafter followed by the governments
was one that cannot be called a
reasonable restriction under Article
19(6) of the Constitution. Normally, the
reason for establishing an educational
institution is to impart education. The
institution thus needs qualified and
experienced teachers and proper
facilities and equipment, all of which
require capital investment. The teachers
are required to be paid properly. As
pointed out above, the restrictions
imposed by the scheme, in Unni
Krishnan's case, made it difficult, if
not impossible, for the educational
institutions to run efficiently. Thus,
such restrictions cannot be said to be
reasonable restrictions.
36. The private unaided
educational institutions impart
education, and that cannot be the reason
to take away their choice in matters,
inter alia, of selection of students and
fixation of fees. Affiliation and
recognition has to be available to every
institution that fulfills the conditions
for grant of such affiliation and
recognition. The private institutions
are right in submitting that it is not
open to the Court to insist that
statutory authorities should impose the
terms of the scheme as a condition for
grant of affiliation or recognition;
this completely destroys the
institutional autonomy and the very
objective of establishment of the
institution.
37. The Unni Krishnan
judgment has created certain problems,
and raised thorny issues. In its anxiety
to check the commercialization of
education, a scheme of "free" and
"payment" seats was evolved on the
assumption that the economic capacity of
first 50% of admitted students would be
greater than the remaining 50%, whereas
the converse has proved to be the
reality. In this scheme, the "payment
seat" student would not only pay for his
own seat, but also finance the cost of a
"free seat" classmate. When one
considers the Constitution Bench's
earlier statement that higher education
is not a fundamental right, it seems
unreasonable to compel a citizen to pay
for the education of another, more so in
the unrealistic world of competitive
examinations which assess the merit for
the purpose of admission solely on the
basis of the marks obtained, where the
urban students always have an edge over
the rural students. In practice, it has
been the case of the marginally less
merited rural or poor student bearing
the burden of a rich and well-exposed
urban student.
38. The scheme in Unni
Krishnan's case has the effect of
nationalizing education in respect of
important features, viz., the right of a
private unaided institution to give
admission and to fix the fee. By framing
this scheme, which has led to the State
Governments legislating in conformity
with the scheme the private institutions
are undistinguishable from the
government institutions; curtailing all
the essential features of the right of
administration of a private unaided
educational institution can neither be
called fair or reasonable. Even in the
decision in Unni Krishnan's case, it has
been observed by Jeevan Reddy, J., at
page 749, para 194, as follows:
"The hard reality that
emerges is that private educational
institutions are a necessity in the
present day context. It is not possible
to do without them because the
Governments are in no position to meet
the demand - particularly in the sector
of medical and technical education which
call for substantial outlays. While
education is one of the most important
functions of the Indian State it has no
monopoly therein. Private educational
institutions - including minority
educational institutions - too have a
role to play."
39. That private
educational instructions are a necessity
becomes evident from the fact that the
number of government-maintained
professional colleges has more or less
remained stationary, while more private
institutions have been established. For
example, in the State of Karnataka there
are 19 medical colleges out of which
there are only 4 government- maintained
medical colleges. Similarly, out of 14
Dental Colleges in Karnataka, only one
has been established by the government,
while in the same State, out of 51
Engineering Colleges, only 12 have been
established by the government. The
aforesaid figures clearly indicate the
important role played by private unaided
educational institutions, both minority
and non-minority, which cater to the
needs of students seeking professional
education.
40. Any system of student
selection would be unreasonable if it
deprives the private unaided institution
of the right of rational selection,
which it devised for itself, subject to
the minimum qualification that may be
prescribed and to some system of
computing the equivalence between
different kinds of qualifications, like
a common entrance test. Such a system of
selection can involve both written and
oral tests for selection, based on
principle of fairness.
41. Surrendering the
total process of selection to the state
is unreasonable, as was sought to be
done in the Unni Krishnan scheme. Apart
from the decision in
St. Stephen's College v. University of
Delhi, which recognized and upheld
the right of a minority aided
institution to have a rational admission
procedure of its own, earlier
Constitution Bench decision of this
Court have, in effect, upheld such a
right of an institution devising a
rational manner of selecting and
admitting students.
42.
In R. Chitralekha and Anr. v. State of
Mysore and Ors., while considering
the validity of a viva-voce test for
admission to a government medical
college, it was observed at page 380
that colleges run by the government,
having regard to financial commitments
and other relevant considerations, would
only admit a specific number of
students. It had devised a method for
screening the applicants for admission.
While upholding the order so issued, it
was observed that "once it is conceded,
and it is not disputed before us, that
the State Government can run medical and
engineering colleges, it cannot be
denied the power to admit such qualified
students as pass the reasonable tests
laid down by it. This is a power which
every private owner of a College will
have, and the Government which runs its
own Colleges cannot be denied that
power." (emphasis added).
43. Again, in
Minor P. Rajendran v. State of Madras
and Ors., it was observed at page
795 that "so far as admission is
concerned, it has to be made by those
who are in control of the Colleges, and
in this case the Government, because the
medical colleges are Government colleges
affiliated to the University. In these
circumstances, the Government was
entitled to frame rules for admission to
medical colleges controlled by it
subject to the rules of the university
as to eligibility and qualifications."
The aforesaid observations clearly
underscore the right of the colleges to
frame rules for admission and to admit
students. The only requirement or
control is that the rules for admission
must be subject to the rules of the
university as to eligibility and
qualifications. The Court did not say
that the university could provide the
manner in which the students were to be
selected.
44.
In Kumari Chitra Ghosh and Anr. v. Union
of India and Ors., dealing with a
government run medical college at pages
232-33, para 9, it was observed as
follows:
"It is the Central
Government which bears the financial
burden of running the medical college.
It is for it to lay down the criteria
for eligibility....."
45. In view of the
discussion hereinabove, we hold that the
decision in Unni Krishnan's case,
insofar as it framed the scheme relating
to the grant of admission and the fixing
of the fee, was not correct, and to that
extent, the said decision and the
consequent direction given to UGC, AICTE,
Medical Council of India, Central and
State Government, etc., are overruled.
3. IN CASE OF PRIVATE
INSTITUTIONS, CAN THERE BE
GOVERNMENT REGULATIONS AND, IF SO,
TO WHAT EXTENT?
46. We will now
examine the nature and extent of the
regulations that can be framed by
the State, University or any
affiliating body, while granting
recognition or affiliation to a
private educational institution.
47. Private
educational institutions, both aided
and unaided, are established and
administered by religious and
linguistic minorities, as well as by
non-minorities. Such private
educational institutions provide
education at three levels, viz.,
school, college and professional
level. It is appropriate to first
deal with the case of private
unaided institutions and private
aided institutions that are not
administered by linguistic or
religious minorities. Regulations
that can be framed relating to
minority institutions will be
considered while examining the merit
and effect of Article 30 of the
Constitution.
Private Unaided
Non-Minority Educational
Institutions
48. Private education
is one of the most dynamic and
fastest growing segments of
post-secondary education at the turn
of the twenty-first century. A
combination of unprecedented demand
for access to higher education and
the inability or unwillingness of
government to provide the necessary
support has brought private higher
education to the forefront. Private
institutions, with a long history in
many countries, are expanding in
scope and number, and are becoming
increasingly important in parts of
the world that relied almost
entirely on the public sector.
49. Not only has
demand overwhelmed the ability of
the governments to provide
education, there has also been a
significant change in the way that
higher education is perceived. The
idea of an academic degree as a
"private good" that benefits the
individual rather than a "public
good" for society is now widely
accepted. The logic of today's
economics and an ideology of
privatization have contributed to
the resurgence of private higher
education, and the establishing of
private institutions where none or
very few existed before.
50. The right to
establish and administer broadly
comprises of the following rights:-
(a) to admit
students:
(b) to set up a
reasonable fee structure:
(c) to constitute a
governing body;
(d) to appoint staff
(teaching and non-teaching); and
(e) to take action if
there is dereliction of duty on the
part of any employees.
51. A University
Education Commission was appointed
on 4th November, 1948, having Dr. S.
Radhakrishnan as its Chairman and
nine other renowned educationists as
its members. The terms of reference,
inter alia, included matters
relating to means and objects of
university education and research in
India and maintenance of higher
standards of teaching and examining
in universities and colleges under
their control. In the report
submitted by this Commission, in
paras 29 and 31, it referred to
autonomy in education which reads as
follows:-
"University Autonomy.
-- Freedom of individual development
is the basis of democracy. Exclusive
control of education by the State
has been an important factor in
facilitating the maintenance of
totalitarian tyrannies. In such
States institutions of higher
learning controlled and managed by
governmental agencies act like
mercenaries, promote the political
purposes of the State, make them
acceptable to an increasing number
of their populations and supply then
with the weapons they need. We must
resist, in the interests of our own
democracy, the trend towards the
governmental domination of the
educational process.
Higher educational
is, undoubtedly, an obligation of
the State but State aid is not to be
confused with State control over
academic policies and practices.
Intellectual progress demands the
maintenance of the spirit of free
inquiry. The pursuit and practice of
truth regardless of consequences has
been the ambition of universities.
Their prayer is that of the dying
Goethe: "More light," or that Ajax
in the mist "Light, though I perish
in the light.
xxxxx xxx xxx
The respect in which
the universities of Great Britain
are held is due to the freedom from
governmental interference which they
enjoy constitutionally and actually.
Our universities should be released
from the control of politics.
Liberal Education. --
All education is expected to be
liberal. It should free us from the
shackles of ignorance, prejudice and
unfounded belief. If we are
incapable of achieving the good
life, it is due to faults in our
inward being, to the darkness in us.
The process of education is the slow
conquering of this darkness. To lead
us from darkness to light, to free
us from every kind of domination
except that of reason, is the aim of
education."
52. There cannot be a
better exposition than what has been
observed by these renowned
educationists with regard to
autonomy in education. The aforesaid
passage clearly shows that the
governmental domination of the
educational process must be
resisted. Another pithy observation
of the Commission was that state aid
was not to be confused with state
control over academic policies and
practices. The observations referred
to hereinabove clearly contemplate
educational institutions soaring to
great heights in pursuit of
intellectual excellence and being
free from unnecessary governmental
controls.
53. With regard to
the core components of the rights
under Article 19 and 26(a), it must
be held that while the state has the
right to prescribe qualifications
necessary for admission, private
unaided colleges have the right to
admit students of their choice,
subject to an objective and rational
procedure of selection and the
compliance of conditions, if any,
requiring admission of a small
percentage of students belonging to
weaker sections of the society by
granting them freeships or
scholarships, if not granted by the
Government. Furthermore, in setting
up a reasonable fee structure, the
element of profiteering is not as
yet accepted in Indian conditions.
The fee structure must take into
consideration the need to generate
funds to be utilized for the
betterment and growth of the
educational institution, the
betterment of education in that
institution and to provide
facilities necessary for the benefit
of the students. In any event, a
private institution will have the
right to constitute its own
governing body, for which
qualifications may be prescribed by
the state or the concerned
university. It will, however, be
objectionable if the state retains
the power to nominate specific
individuals on governing bodies.
Nomination by the state, which could
be on a political basis, will be an
inhibiting factor for private
enterprise to embark upon the
occupation of establishing and
administering educational
institutions. For the same reasons,
nomination of teachers either
directly by the department or
through a service commission will be
an unreasonable inroad and an
unreasonable restrictions on the
attorney of the private unaided
educational institution.
54. The right to
establish an educational institution
can be regulated; but such
regulatory measures must, in
general, be to ensure the
maintenance of proper academic
standards, atmosphere and
infrastructure (including qualified
staff) and the prevention of
mal-administration by those in
charge of management. The fixing of
a rigid fee structure, dictating the
formation and composition of a
government body, compulsory
nomination of teachers and staff for
appointment or nominating
students for
admissions would be unacceptable
restrictions.
55. The Constitution
recognizes the right of the
individual or religious
denomination, or a religious or
linguistic minority to establish an
educational institution. If aid or
financial assistance is not sought,
then such institution will be a
private unaided institution.
Although, in Unni Krishnan's case,
the Court emphasized the important
role played by private unaided
institutions and the need for
private funding, in the scheme that
was framed, restrictions were placed
on some of the important ingredients
relating to the functioning of an
educational institution. There can
be no doubt that in seeking
affiliation or recognition, the
Board or the university or the
affiliating or recognizing authority
can lay down conditions consistent
with the requirement to ensure the
excellence of education. It can, for
instance, indicate the quality of
the teachers by prescribing the
minimum qualifications that they
must possess, and the courses of
study and curricula. It can, for the
same reasons, also stipulate the
existence of infrastructure
sufficient for its growth, as a
pre-requisite. But the essence of a
private educational institution is
the autonomy that the institution
must have in its management and
administration. There, necessarily,
has to be a difference in the
administration of private unaided
institutions and the
government-aided institutions.
Whereas in the latter case, the
Government will have greater say in
the administration, including
admissions and fixing of fees, in
the case of private unaided
institutions, maximum autonomy in
the day-to-day administration has to
be with the private unaided
institutions. Bureaucratic or
governmental interference in the
administration of such an
institution will undermine its
independence. While an educational
institution is not a business, in
order to examine the degree of
independence that can be given to a
recognized educational institution,
like any private entity that does
not seek aid or assistance from the
Government, and that exists by
virtue of the funds generated by it,
including its loans or borrowings,
it is important to note that the
essential ingredients of the
management of the private
institution include the recruiting
students and staff, and the quantum
of fee that is to be charged.
56. An educational
institution is established for the
purpose of imparting education of
the type made available by the
institution. Different courses of
study are usually taught by teachers
who have to be recruited as per
qualifications that may be
prescribed. It is no secret that
better working conditions will
attract better teachers. More
amenities will ensure that better
students seek admission to that
institution. One cannot lose sight
of the fact that providing good
amenities to the students in the
form of competent teaching faculty
and other infrastructure costs
money. It has, therefore, to be left
to the institution, if it chooses
not to seek any aid from the
government, to determine the scale
of fee that it can charge from the
students. One also cannot lose sight
of the fact that we live in a
competitive world today, where
professional education is in demand.
We have been given to understand
that a large number of professional
and other institutions have been
started by private parties who do
not seek any governmental aid. In a
sense a prospective students has
various options open to him/her
where, therefore, normally economic
forces have a role to play. The
decision on the fee to be charged
must necessarily be left to the
private educational institution that
does not seek or is not dependent
upon any funds from the government.
57. We, however, wish
to emphasize one point, and that is
that inasmuch as the occupation of
education is, in a sense, regarded
as charitable, the government can
provide regulations that will ensure
excellence in education, while
forbidding the charging of
capitation fee and profiteering by
the institution. Since the object of
setting up an educational
institution is by definition
"charitable", it is clear that an
educational institution cannot
charge such a fee as is not required
for the purpose of fulfilling that
object. To put it differently, in
the establishment of an educational
institution, the object should not
be to make a profit, inasmuch as
education is essentially charitable
in nature. There can, however, be a
reasonable revenue surplus, which
may be generated by the educational
institution for the purpose of
development of education and
expansion of the institution.
58. For admission
into any professional institution,
merit must play an important role.
While it may not be normally
possible to judge the merit of the
applicant who seeks admission into a
school, while seeking admission to a
professional institution and to
become a competent professional, it
is necessary that meritorious
candidates are not unfairly treated
or put at a disadvantage by
preferences shown to less
meritorious but more influential
applicants. Excellence in
professional education would require
that greater emphasis be laid on the
merit of a student seeking
admission. Appropriate regulations
for this purpose may be made keeping
in view the other observations made
in this judgment in the context of
admissions to unaided institutions.
59. Merit is usually
determined, for admission to
professional and higher education
colleges, by either the marks that
the student obtains at the
qualifying examination or school
leaving certificate stage followed
by the interview, or by a common
entrance test conducted by the
institution, or in the case of
professional colleges, by government
agencies.
60. Education is
taught at different levels from
primary to professional. It is,
therefore, obvious that government
regulations for all levels or types
of educational institutions cannot
be identical; so also, the extent of
control or regulation could be
greater vis-a-vis aided
institutions.
61. In the case of
unaided private schools, maximum
autonomy has to be with the
management with regard to
administration, including the right
of appointment, disciplinary powers,
admission of students and the fees
to be charged. At the school level,
it is not possible to grant
admission on the basis of merit. It
is no secret that the examination
results at all levels of unaided
private schools, notwithstanding the
stringent regulations of the
governmental authorities, are far
superior to the results of the
government-maintained schools. There
is no compulsion on students to
attend private schools. The rush for
admission is occasioned by the
standards maintained in such
schools, and recognition of the fact
that state-run schools do not
provide the same standards of
education. The State says that it
has no funds to establish
institutions at the same level of
excellence as private schools. But
by curtaining the income of such
private schools, it disables those
schools from affording the best
facilities because of a lack of
funds. If this lowering of standards
from excellence to a level of
mediocrity is to be avoided, the
state has to provide the difference
which, therefore, brings us back in
a vicious circle to the original
problem, viz., the lack of state
funds. The solution would appear to
lie in the States not using their
scanty resources to prop up
institutions that are able to
otherwise maintain themselves out of
the fees charged, but in improving
the facilities and infrastructure of
state-run schools and in subsidizing
the fees payable by the students
there. It is in the interest of the
general public that more good
quality schools are established;
autonomy and non-regulation of the
school administration in the right
of appointment, admission of the
students and the fee to be charged
will ensure that more such
institutions are established. The
fear that if a private school is
allowed to charge fees commensurate
with the fees affordable, the
degrees would be "purchasable" is an
unfounded one since the standards of
education can be and are
controllable through the regulations
relating to recognition, affiliation
and common final examinations.
62. There is a need
for private enterprise in
non-professional college education
as well. At present, insufficient
number of undergraduate colleges are
being and have been established, one
of the inhibiting factors being that
there is a lack of autonomy due to
government regulations. It will not
be wrong to presume that the numbers
of professional colleges are growing
at a faster rate than the number of
undergraduate and non- professional
colleges. While it is desirable that
there should be a sufficient number
of professional colleges, it should
also be possible for private unaided
undergraduate colleges that are
non-technical in nature to have
maximum autonomy similar to a
school.
63. It was submitted
that for maintaining the excellence
of education, it was important that
the teaching faculty and the members
of the staff of any educational
institution performed their duties
in the manner in which it is
required to be done, according to
the rules or instructions. There
have been cases of misconduct having
been committed by the teachers and
other members of the staff. The
grievance of the institution is that
whenever disciplinary action is
sought to be taken in relation to
such misconduct, the rules that are
normally framed by the government or
the university are clearly loaded
against the Management. It was
submitted that in some cases, the
rules require the prior permission
of the governmental authorities
before the intimation of the
disciplinary proceeding, while in
other cases, subsequent permission
is required before the imposition of
penalties in the case of proven
misconduct. While emphasizing the
need for an independent authority to
adjudicate upon the grievance of the
employee or the Management in the
event of some punishment being
imposed, it was submitted that there
should be no role for the government
or the university to play in
relation to the imposition of any
penalty on the employee.
64. An educational
institution is established only for
the purpose of imparting education
to the students. In such an
institution, it is necessary for all
to maintain discipline and abide by
the rules and regulations that have
been lawfully framed. The teachers
are like foster- parents who are
required to look after, cultivate
and guide the students in their
pursuit of education. The teachers
and the institution exist for the
students and not vice versa. Once
this principle is kept in mind, it
must follow that it becomes
imperative for the teaching and
other staff of an educational
institution to perform their duties
properly, and for the benefit of the
students. Where allegations of
misconduct are made, it is
imperative that a disciplinary
enquiry is conducted, and that a
decision is taken. In the case of a
private institution, the
relationship between the Management
and the employees is contractual in
nature. A teacher, if the contract
so provides, can be proceeded
against, and appropriate
disciplinary action can be taken if
the misconduct of the teacher is
proved. Considering the nature of
the duties and keeping the principle
of natural justice in mind for the
purposes of establishing misconduct
and taking action thereon, it is
imperative that a fair domestic
enquiry is conducted. It is only on
the basis of the result of the
disciplinary enquiry that the
management will be entitled to take
appropriate action. We see no reason
why the Management of a private
unaided educational should seek the
consent or approval of any
governmental authority before taking
any such action. In the ordinary
relationship of master and servant,
governed by the terms of a contract
of employment, anyone who is guilty
of breach of the terms can be
proceeded against and appropriately
relief can be sought. Normally, the
aggrieved party would approach a
court of law and seek redress. In
the case of educational
institutions, however, we are of the
opinion that requiring a teacher or
a member of the staff to go to a
civil court for the purpose of
seeking redress is not in the
interest of general education.
Disputes between the management and
the staff of educational
institutions must be decided
speedily, and without the excessive
incurring of costs. It would,
therefore, be appropriate that an
educational Tribunal be set up in
each district in a State, to enable
the aggrieved teacher to file an
appeal, unless there already exists
such an educational tribunal in a
State -- the object being that the
teacher should not suffer through
the substantial costs that arise
because of the location of the
tribunal; if the tribunals are
limited in number, they can hold
circuit/camp sittings in different
districts to achieve this objective.
Till a specialized tribunal is set
up, the right of filing the appeal
would lie before the District Judge
or Additional District Judge as
notified by the government. It will
not be necessary for the institution
to get prior permission or ex post
facto approval of a governmental
authority while taking disciplinary
action against a teacher or any
other employee. The State Government
shall determine, in consultation
with the High Court, the judicial
forum in which an aggrieved teacher
can file an appeal against the
decision of the management
concerning disciplinary action or
termination of service.
65. The reputation of
an educational institution is
established by the qualify of its
faculty and students, and the
educational and other facilities
that the colleges has to offer. The
private educational institutions
have a personality of their own, and
in order to maintain their
atmosphere and traditions, it is but
necessary that they must have the
right to choose and select the
students who can be admitted to
their courses of studies. If is for
this reason that in the St.
Stephen's College case, this Court
upheld the scheme whereby a cut-off
percentage was fixed for admission,
after which the students were
interviewed and thereafter selected.
While an educational institution
cannot grant admission on its whims
and fancies, and must follow some
identifiable or reasonable
methodology of admitting the
students, any scheme, rule or
regulation that does not give the
institution the right to reject
candidates who might otherwise be
qualified according to say their
performance in an entrance test,
would be an unreasonable restriction
under Article 19(6), though
appropriate guidelines/modalities
can be prescribed for holding the
entrance test a fair manner. Even
when students are required to be
selected on the basis of merit, the
ultimate decision to grant admission
to the students who have otherwise
qualified for the grant of admission
must be left with the educational
institution concerned. However, when
the institution rejects such
students, such rejection must not be
whimsical or for extraneous reasons.
66. In the case of
private unaided educational
institution, the authority granting
recognition or affiliation can
certainly lay down conditions for
the grant of recognition or
affiliation; these conditions must
pertain broadly to academic and
educational matters and welfare of
students and teachers - but how the
private unaided institutions are to
run is a matter of administration to
be taken care of by the Management
of those institutions.
Private Unaided
Professional Colleges
67. We now come to
the regulations that can be framed
relating to private unaided
professional
institutions.
68. It would be
unfair to apply the same rules and
regulations regulating admission to
both aided and unaided professional
institutions. It must be borne in
mind that unaided professional
institutions are entitled to
autonomy in their administration
while, at the same time, they do not
forgo or discard the principle of
merit. It would, therefore, be
permissible for the university or
the government, at the time of
granting recognition, to require a
private unaided institution to
provide for merit-based selection
while, at the same time, giving the
Management sufficient discretion in
admitting students. This can be done
through various methods. For
instance, a certain percentage of
the seats can be reserved for
admission by the Management out of
those students who have passed the
common entrance test held by itself
or by the State/University and have
applied to the college concerned for
admission, while the rest of the
seats may be filled up on the basis
of counselling by the state agency.
This will incidentally take care of
poorer and backward sections of the
society. The prescription of
percentage for this purpose has to
be done by the government according
to the local needs and different
percentage can be fixed for minority
unaided and non-minority unaided and
professional colleges. The same
principles may be applied to other
non-professional but unaided
educational institutions viz.,
graduation and post- graduation
non-professional colleges or
institutes.
69. In such
professional unaided institutions,
the Management will have the right
to select teachers as per the
qualifications and eligibility
conditions laid down by the
State/University subject to adoption
of a rational procedure of
selection. A rational fee structure
should be adopted by the Management,
which would not be entitled to
charge a capitation fee. Appropriate
machinery can be devised by the
state or university to ensure that
no capitation fee is charged and
that there is no profiteering,
though a reasonable surplus for the
furtherance of education is
permissible. Conditions granting
recognition or affiliation can
broadly cover academic and
educational matters including the
welfare of students and teachers.
70. It is well
established all over the world that
those who seek professional
education must pay for it. The
number of seats available in
government and government-aided
colleges is very small, compared to
the number of persons seeking
admission to the medical and
engineering colleges. All those
eligible and deserving candidates
who could not be accommodated in
government colleges would stand
deprived of professional education.
This void in the field of medical
and technical education has been
filled by institutions that are
established in different places with
the aid of donations and the active
part taken by public-minded
individuals. The object of
establishing an institution has thus
been to provide technical or
professional education to the
deserving candidates, and is not
necessarily a commercial venture. In
order that this intention is
meaningful, the institution must be
recognized. At the school level, the
recognition or affiliation has to be
sought from the educational
authority or the body that conducts
the school-leaving examination. It
is only on the basis of that
examination that a school-leaving
certificate is granted, which
enables a student to seek admission
in further courses of study after
school. A college or a professional
educational institution has to get
recognition from the concerned
university, which normally requires
certain conditions to be fulfilled
before recognition. It has been held
that conditions of affiliation or
recognition, which pertain to the
academic and educational character
of the institution and ensure
uniformity, efficiency and
excellence in educational courses
are valid, and that they do not
violate even the provisions of
Article 30 of the Constitution; but
conditions that are laid down for
granting recognition should not be
such as may lead to governmental
control of the administration of the
private educational institutions.
Private Aided
Professional Institutions
(non-minority)
71. 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.
The merit may be determined
either through a common entrance
test conducted by the University
or the Government followed by
counseling, 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
device 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.
72. Once aid is
granted to a private
professional educational
institution, the government or
the state agency, as a condition
of the grant of aid, can put
fetters on the freedom in the
matter of administration and
management of the institution.
The state, which gives aid to an
educational institution, can
impose such conditions as are
necessary for the proper
maintenance of the high
standards of education as the
financial burden is shared by
the state. The state would also
be under an obligation to
protect the interest of the
teaching and non-teaching staff.
In many states, there are
various statutory provisions to
regulate the functioning of such
educational institutions where
the States give, as a grant or
aid, a substantial proportion of
the revenue expenditure
including salary, pay and
allowances of teaching and
non-teaching staff. It would be
its responsibility to ensure
that the teachers working in
those institutions are governed
by proper service conditions.
The state, in the case of such
aided institutions, has ample
power to regulate the method of
selection and appointment of
teachers after prescribing
requisite qualifications for the
same. Ever since In Re The
Kerala Education Bill, 1957
[(1959) SCR 995], this Court has
upheld, in the case of aided
institutions, those regulations
that served the interests of
students and teachers. Checks on
the administration may be
necessary in order to ensure
that the administration is
efficient and sound and will
serve the academic needs of the
institutions. In other words,
rules and regulations that
promote good administration and
prevent mal-administration can
be formulated so as to promote
the efficiency of teachers,
discipline and fairness in
administration and to preserve
harmony among affiliated
institutions. At the same time
it has to be ensured that even
an aided institution does not
become a government-owned and
controlled institution.
Normally, the aid that is
granted is relatable to the pay
and allowances of the teaching
staff. In addition, the
Management of the private aided
institutions has to incur
revenue and capital expenses.
Such aided institutions cannot
obtain that extent of autonomy
in relation to management and
administration as would be
available to a private unaided
institution, but at the same
time, it cannot also be treated
as an educational institution
departmentally run by government
or as a wholly owned and
controlled government
institution and interfere with
Constitution of the governing
bodies or thrusting the staff
without reference to Management.
Other Aided
Institutions
73. There are a
large number of educational
institutions, like schools and
non-professional colleges, which
cannot operate without the
support of aid from the state.
Although these institutions may
have been established by
philanthropists or other
public-spirited persons, it
becomes necessary, in order to
provide inexpensive education to
the students, to seek aid from
the state. In such cases, as
those of the professional aided
institutions referred to
hereinabove, the Government
would be entitled to make
regulations relating to the
terms and conditions of
employment of the teaching and
non-teaching staff whenever the
aid for the posts is given by
the State as well as admission
procedures. Such rules and
regulations can also provide for
the reasons and the manner in
which a teacher or any other
member of the staff can be
removed. in other words, the
autonomy of a private aided
institution would be less than
that of an unaided institution.
4. IN ORDER
TO DETERMINE THE EXISTENCE
OF A RELIGIOUS OR LINGUISTIC
MINORITY IN RELATION TO
ARTICLE 30, WHAT IS TO BE
THE UNIT - THE STATE OR THE
COUNTRY AS A WHOLE?
74. We now
consider the question of the
unit for the purpose of
determining the definition
of "minority" within the
meaning of Article 30(1).
75. Article
30(1) deals with religious
minorities and linguistic
minorities. The opening
words of Article 30(1) make
it clear that religious and
linguistic minorities have
been put at par, insofar as
that Article is concerned.
Therefore, whatever the unit
- whether a state or the
whole of India - for
determining a linguistic
minority, it would be the
same in relation to a
religious minority. India is
divided into different
linguistic states. The
states have been carved out
on the basis of the language
of the majority of persons
of that region. For example,
Andhra Pradesh was
established on the basis of
the language of that region.
viz., Telugu. "Linguistic
minority" can, therefore,
logically only be in
relation to a particular
State. If the determination
of "linguistic minority" for
the purpose of Article 30 is
to be in relation to the
whole of India, then within
the State of Andhra Pradesh,
Telugu speakers will have to
be regarded as a "linguistic
minority". This will clearly
be contrary to the concept
of linguistic states.
76. If,
therefore, the state has to
be regarded as the unit for
determining "linguistic
minority" vis-a-vis Article
30, then with "religious
minority" being on the same
footing, it is the state in
relation to which the
majority or minority status
will have to be determined.
77. In the
Kerala Education Bill case,
the question as to whether
the minority community was
to be determined on the
basis of the entire
population of India, or on
the basis of the population
of the State forming a part
of the Union was posed at
page 1047. It had been
contended by the State of
Kerala that for claiming the
status of minority, the
persons must numerically be
a minority in the particular
region in which the
education institution was
situated, and that the
locality or ward or town
where the institution was to
be situated had to be taken
as the unit to determine the
minority community. No final
opinion on this question was
expressed, but it was
observed at page 1050 that
as the Kerala Education Bill
"extends to the whole of the
State of Kerala and
consequently the minority
must be determined by
reference to the entire
population of that State."
78. In two
cases pertaining to the DAV
College, this Court had to
consider whether the Hindus
were a religious minority in
the State of Punjab. In
D.A.V. College v. State of
Punjab and Ors. [1971
(Supp.) SCR 688], the
question posed was as to
what constituted a religious
or linguistic minority, and
how it was to be determined.
After examining the opinion
of this Court in the Kerala
Education Bill case, the
Court held that the Arya
Samajis, who were Hindus,
were a religious minority in
the State of Punjab, even
though they may not have
been so in relation to the
entire country. In another
case, D.A.V. College
Bhatinda v. State of Punjab
and Ors. [1971 (Supp.) SCR
677], the observations in
the first D.A.V. College
case were explained, and at
page 681, it was stated that
"what constitutes a
linguistic or religious
minority must be judged in
relation to the State
inasmuch as the impugned Act
was a State Act and not in
relation to the whole of
India." The Supreme Court
rejected the contention that
since Hindus were a majority
in India, they could not be
a religious minority in the
state of Punjab, as it took
the state as the unit to
determine whether the Hindus
were a minority community.
79. There
can, therefore, be little
doubt that this Court has
consistently held that, with
regard to a state law, the
unit to determine a
religious or linguistic
minority can only be the
state.
80. The
Forty-Second Amendment to
the Constitution included
education in the Concurrent
List under Entry 25. Would
this in any way change the
position with regard to the
determination of a
"religious" or "linguistic
minority" for the purposes
of Article 30?
81. As a
result of the insertion of
Entry 25 into List III,
Parliament can now legislate
in relation to education,
which was only a state
subject previously. The
jurisdiction of the
Parliament is to make laws
for the whole or a part of
India. It is well recognized
that geographical
classification is not
violative of Article 14. It
would, therefore, be
possible that, with respect
to a particular State or
group of States, Parliament
may legislate in relation to
education. However, Article
30 gives the right to a
linguistic or religious
minority of a State to
establish and administer
educational institutions of
their choice. The minority
for the purpose of Article
30 cannot have different
meanings depending upon who
is legislating. Language
being the basis for the
establishment of different
states for the purposes of
Article 30 a "linguistic
minority" will have to be
determined in relation to
the state in which the
educational institution is
sought to be established.
The position with regard to
the religious minority is
similar, since both
religious and linguistic
minorities have been put at
par in Article 30.
5. TO WHAT
EXTENT CAN THE RIGHTS OF
AIDED PRIVATE MINORITY
INSTITUTIONS TO ADMINISTER
BE REGULATED?
82. Article
25 give to all persons the
freedom of conscience and
the right to freely profess,
practice and propagate
religion. This right,
however, is not absolute.
The opening words of Article
25(1) make this right
subject to public order,
morality and health, and
also to the other provisions
of Part III of the
Constitution. This would
mean that the right given to
a person under 25(1) can be
curtailed or regulated if
the exercise of that right
would violate other
provisions of Part III of
the Constitution, or if the
exercise thereof is to in
consonance with public
order, morality and health.
The general law made by the
government contains
provisions relating to
public order, morality and
health; these would have to
be complied with, and cannot
be violated by any person in
exercise of his freedom of
conscience or his freedom to
profess, practice and
propagate religion. For
example, a person cannot
propagate his religion in
such a manner as to
denigrate another religion
or bring about
dissatisfaction amongst
people.
83. Article
25(2) gives specific power
to the state to make any law
regulating or restricting
any economic, financial,
political or other secular
activity, which may be
associated with religious
practice as provided by
Sub-clause (a) of Article
25(2). This is a further
curtailment of the right to
profess, practice and
propagate religion conferred
on the persons under Article
25(1). Article 25(2)(a)
covers only a limited area
associated with religious
practice, in respect of
which a law can be made. A
careful reading of Article
25(2)(a) indicates that it
does not prevent the State
from making any law in
relation to the religious
practice as such. The
limited jurisdiction granted
by Article 25(2) relates to
the making of a law in
relation to economic,
financial, political or
other secular activities
associated with the
religious practice.
84. The
freedom to manage religious
affairs is provided by
Article 26. This Article
gives the right to every
religious denomination, or
any section thereof, to
exercise the rights that it
stipulates. However, this
right has to be exercised in
a manner that is in
conformity with public
order, morality and health.
Clause (a) of Article 26
gives a religious
denomination the right to
establish and maintain
institutions for religious
and charitable purposes.
There is no dispute that the
establishment of an
educational institution
comes within the meaning of
the expression "charitable
purpose". Therefore, while
Article 25(1) grants the
freedom of conscience and
the right to profess,
practice and propagate
religion, Article 26 can be
said to be complementary to
it, and provides for every
religious denomination, or
any section thereof, to
exercise the rights
mentioned therein. This is
because Article 26 does not
deal with the right of an
individual, but is confined
to a religious denomination.
Article 26 refers to a
denomination of any
religion, whether it is a
majority or a minority
religion, just as Article 25
refers to all persons,
whether they belong to the
majority or a minority
religion. Article 26 gives
the right to majority
religious denominations, as
well as to minority
religious denominations, to
exercise the rights
contained therein.
85.
Secularism being one of the
important basic features of
our Constitution, Article 27
provides that no person
shall be compelled to pay
any taxes, the proceeds of
which are specifically
appropriated for the payment
of expenses for the
promotion and maintenance of
any particular religion or
religions denomination. The
manner in which the Article
has been framed does not
prohibit the state from
enacting a law to incur
expenses for the promotion
or maintenance of any
particular religion or
religious denomination, but
specifies that by that law,
no person can be compelled
to pay any tax, the proceeds
of which are to be so
utilized. In other words, if
there is a tax for the
promotion or maintenance of
any particular religion or
religious denomination, no
person an be compelled to
pay any such tax.
86. Article
28(1) prohibits any
educational institution,
which is wholly maintained
out of state funds, to
provide for religious
instruction. Moral education
dissociation from any
demoninational doctrine is
not prohibited; but, as the
state is intended to be
secular, an educational
institution wholly
maintained out of state
funds cannot impart or
provide for any religious
instruction.
87. The
exception to Article 28(1)
is contained in Article
28(2). Article 28(2) deals
with cases where, by an
endowment or trust, an
institution is established,
and the terms of the
endowment or the trust
require the imparting of
religious instruction, and
where that institution is
administered by the state.
In such a case, the
prohibition contained in
Article 28(1) does not
apply. If the administration
of such an institution is
voluntarily given to the
government, or the
government, for a good
reason and in accordance
with law, assumes or takes
over the management of that
institution, say on account
of mal-administration, then
the government, on assuming
the administration of the
institution, would be
obliged to continue with the
imparting of religious
instruction as provided by
the endowment or the trust.
88. While
Article 28(1) and Article
28(2) relate to institutions
that are wholly maintained
out of state funds, Article
28(3) deals with an
educational institution that
is recognized by the state
or receives aid out of state
funds. Article 28(3) gives
the person attending any
educational institution the
right not to take part in
any religious instruction,
which may be imparted by an
institution recognized by
the state, or receiving aid
from the state. Such a
person also has the right
not to attend any religious
worship that may be
conducted in such an
institution, or in any
premises attached thereto,
unless such a person, or if
he/she is a minor, his/her
guardian, has given his/her
consent. The reading of
Article 28(3) clearly shows
that no person attending an
educational institution can
be required to take part in
any religious instruction or
any religious worship,
unless the person or his/her
guardian has given his/her
consent thereto, in a case
where the educational
institution has been
recognized by the state or
receives aid out of its
funds. We have seen that
Article 26(a) gives the
religious denomination the
right to establish an
educational institution, the
religious denomination being
either of the majority
community or minority
community. In any
institution, whether
established by the majority
or a minority religion, if
religious instruction in
imparted, no student can be
compelled to take part in
the said religious
instruction or in any
religious worship. An
individual has the absolute
right not to be compelled to
take part in any religious
instruction or worship.
Article 28(3) thereby
recognizes the right of an
individual to practice or
profess his own religion. In
other words, in matters
relating to religious
instruction or worship,
there can be no compulsion
where the educational
institution is either
recognized by the state or
receives aid from the state.
89. Articles
29 and 30 are a group of
articles relating to
cultural and educational
rights. Article 29(1) gives
the right to any section of
the citizens residing in
India or any part thereof,
and having a distinct
language, script or culture
of its own, to conserve the
same. Article 29(1) does not
refer to any religion, even
though the marginal note of
the Article mentions the
interests of minorities.
Article 29(1) essentially
refers to sections of
citizens who have a distinct
language script or culture,
even though their religion
may not be the same. The
common thread that runs
through Article 29(1) in
language, script or culture,
and not religion. For
example, if in any part of
the country, there is a
section of society that has
a distinct language, they
are entitled to conserve the
same, even though the
persons having that language
may profess different
religions. Article 29(1)
gives the right to all
sections of citizens,
whether they are in a
minority or the majority
religions, to conserve their
language, script or culture.
90. In the
exercise of this right to
converse the language,
script or culture, that
section of the society can
set up educational
institutions. The right to
establish and maintain
institutions of its choice
is a necessary concomitant
to the right conferred by
Article 30. The right under
Article 30 is not absolute.
Article 29 (2) provides that,
where any educational
institution is maintained by
the state or receives aid
out of state funds no
citizen shall be denied
admission on the grounds
only of religion, race,
caste, language or any of
them. The use of the
expression "any educational
institution" in Article
29 (2) would refer to any
educational institution
established by anyone, but
which is maintained by the
state or receives aid out of
state funds. In other words,
on a plain reading,
state-maintained or aided
educational institutions,
whether established by the
Government or the majority
or a minority community
cannot deny admission to a
citizen on the grounds only
of religion, race, caste or
language.
91. The right
of the minorities to
establish and administer
educational institutions is
provided for by Article
30 (1). To some extent,
Article 26 (1) (a) and Article
30 (1) overlap, insofar as
they relate to the
establishment of educational
institutions but whereas
Article 26 gives the right
both to the majority as well
as minority communities to
establish and maintain
institutions for charitable
purposes, which would inter alia, include educational
institutions, Article 30 (1)
refers to the right of
minorities to establish and
maintain educational
institutions of their
choice. Another difference
between Article 26 and
Article 30 is that whereas
Article 26 refers only to
religious denominations,
Article 30 contains the
right of religious as well
as linguistic minorities to
establish and administer
educational institutions of
their choice.
92. Article
30 (1) bestows on the
minorities, whether based on
religion or language, the
right to establish and
administer educational
institution of their choice.
Unlike Article 25 and 26,
Article 30 (1) does not
specifically state that the
right under Article 30 (1) is
subject to public order,
morality and health or to
other provisions of Part
III. This Sub-Article also
does not specifically
mention that the right to
establish and administer a
minority educational
institution would be subject
to any rules or regulations.
93. Can
Article 30 (1) be so read as
to mean that it contains an
absolute right of the
minorities, whether based on
religion or language, to
establish and administer
educational institutions in
any manner they desire, and
without being obliged to
comply with the provisions
of any law? Article
30 (1) give the religious or
linguistic minorities a
right to establish an
educational institution that
propagates religious or
racial bigotry or ill will
amongst the people? Can the
right under Article 30 (1) be
so exercised that it is
opposed to public morality
or health? In the exercise
of its right, would the
minority while establishing
educational institutions not
be bound by town planning
rules and regulations? Can
they construct and maintain
buildings in any manner they
desire without complying with the
provisions of the building
by-laws or health
regulations?
94. In order
to interpret Article 30 and
its interplay, it any, with
Article 29, our attention
was drawn to the Constituent
Assembly Debates. While
referring to them, the
learned Solicitor General
submitted that the
provisions of Article 29(2)
were intended to be
applicable to minority
institutions seeking
protection of Article 30. He
argued that if any
educational institution
sought aid, it could not
deny admission only on the
ground of religion, race,
caste or language and,
consequently giving a
preference to the minority
over more meritorious non-
minority students was
impermissible. It is now
necessary to refer to some
of the decisions of this
Court insofar as they
interpret Articles 29 and
30, and to examine whether
any creases therein need
ironing out.
95.
In The State of Madras v. Srimathi Champakam
Dorairajan [(1951) SCR
525] the State had issued an
order, which provided that
admission to students to
engineering and medical
colleges in the State should
be decided by the Selection
Committee strictly on the
basis of the number of seats
fixed for different
communities. While
considering the validity of
this order this Court
interpreted Article 29(2)
and held that if admission
was refused only on the
grounds of religion, race,
caste, language or any of
them, then there was a clear
breach of the fundamental
right under Article 29(2).
The said order was construed
as being violative of
Article 29 (2), because
students who did not fall in
the particular categories
were to be denied admission.
In this connection it was
observed as follows:-
".....So far as those seats
are concerned, the
petitioners are denied
admission into any of them,
not on any ground other than
the sole ground of their
being Brahmins and not being
members of the community for
whom those reservations were
made....."
96. This
government order was held to
be violative of the
Constitution and
constitutive of a clear
breach of Article 29 (2).
Article 30 did not come up
for consideration in that
case.
97. In The
State of Bombay v.Bombay
Education Society and Ors.,
the State had issued a
circular, the operative
portion of which directed
that no primary or secondary
school could, from the date
of that circular admit to a
class where English was used
as a medium of instruction,
any pupil other than pupils
belonging to a section of
citizens, the language of
whom was English, viz,
Anglo-Indians and citizens
of non-Asiatic descent. The
validity of the circular was
challenged while admission
was refused, inter alia, to
a member of the Gujarati
Hindu Community. A number of
writ petitions were filed
and the High Court allowed
them. In an application
filed by the State of
Bombay, this Court had to
consider whether the said
circular was ultra vires
Article 29(2). In deciding
this question, the Court
analyzed the provisions of
Articles 29(2) and 30, and
repelled the contention that
Article 29(2) guaranteed the
right only to the citizens
of the minority group. It
was observed, in this
connection, at page 579, as
follows:
".....The
language of Article 29(2) is
wide and unqualified and may
well cover all citizens
whether they belong to the
majority or minority group.
Article 15 protects all
citizens against the State
whereas the protection of
Article 29(2) extends
against the State or anybody
who denies the right
conferred by it. Further
Article 15 protects all
citizens against
discrimination generally but
Article 29(2) is a
protection against a
particular species of wrong
namely denial of admission
into educational
institutions of the
specified kind. In the next
place Article 15 is quite
general and wide in its
terms and applies to all
citizens, whether they
belong to the majority or
minority groups, and gives
protection to all the
citizens against
discrimination by the State
on certain specific grounds.
Article 29(2) confers a
special right on citizens
for admission into
educational institutions
maintained or aided by the
State. To limit this right
only to citizens belonging
to minority groups will be
to provide a double
protection for such citizens
and to hold that the
citizens of the majority
group have no special
educational rights in the
nature of a right to be
admitted into an educational
institution for the
maintenance of which they
make contributions by way of
taxes. We see no cogent
reason for such
discrimination. The heading
under which Articles 29 and
30 are grouped together -
namely "Cultural and
Educational Rights" is quite
general and does not in
terms contemplate such
differentiation. If the fact
that the institution is
maintained or aided out of
State funds is the basis of
this guaranteed right then
all citizens, irrespective
of whether they belong to
the majority or minority
groups; are alike entitled
to the protection of this
fundamental right....."
98. It is
clear from the aforesaid
discussion that this Court
came to the conclusion that
in the case of minority
educational institutions to
which protection was
available under Article 30,
the provisions of Article
29(2) were indeed
applicable. But, it may be
seen that the question in
the present from i.e.,
whether in the matter of
admissions into aided
minority educational
institutions, minority
students could be preferred
to a reasonable extent,
keeping in view the special
protection given under
Article 30(1), did not arise
for consideration in that
case.
99. In the
Kerala Education Bill case,
this Court again had the
occasion to consider the
interplay of Articles 29 and
30 of the Constitution. This
case was a reference under
Article 143(1) of the
Constitution made by the
President of India to obtain
the opinion of this Court on
certain questions relating
to the constitutional
validity of some of the
provisions of the kerala
Education Bill, 1957, which
had been passed by the
Kerala Legislative Assembly,
but had been reserved by the
Governor for the
consideration of the
President. Clause 3(5) of
the Bill, made the
recognition of new schools
subject to the other
provisions of the Bill and
the rules framed by the
Government under Clause
(36); Clause (15) authorized
the Government to acquire
any category of schools;
Clause 8(3) made it
obligatory on all aided
schools to hand over the
fees to the Government;
Clauses 9 to 13 made
provisions for the
regulation and management of
the schools, payment of
salaries to teachers and the
terms and conditions of
their appointment, and
Clause (33) forbade the
granting of temporary
injunctions and interim
orders in restraint of
proceedings under the Act.
100. With
reference to Article 29(2),
the Court observed at page
1055, while dealing with an
argument based on Article
337 that "likewise Article
29(2) provides, inter alia,
that no citizen shall be
denied admission into any
educational institution
receiving did out of State
funds on grounds only of
religion, race, caste,
language or any of them".
Referring to Part III of the
Constitution and to Articles
19 and 25 to 28 in
particular, the Court said:-
".....Under
Article 25 all persons are
equally entitled, subject to
public order, morality and
health and to the other
provisions of Part III, to
freedom of conscience and
the right freely to profess,
practise and propagate
religion. Article 26 confers
the fundamental right to
every religious denomination
or any section thereof,
subject to public order,
morality and health, to
establish and maintain
institutions for religious
and charitable purposes, to
manage its own affairs in
matters of religion, to
acquire property and to
administer such property in
accordance with law. The
ideal being to constitute
India into a secular State,
no religious instruction is,
under Article 28(1), to be
provided in any educational
institution wholly
maintained out of State
funds and under Clause (3)
of the same Article no
person attending any
educational institution
recognized by the State or
receiving aid out of State
funds is to be required to
take part in any religious
instruction that may be
imparted in such institution
or to attend any religious
worship that may be
conducted in such
institution or in any
premises attached thereto
unless such person or, if
such person is a minor, his
guardian has given his
consent thereto. Article
29(1) confers on any section
of the citizens having a
distinct language, script or
culture of its own to have
the right of conserving the
same. Clause (2) of that
Article provides that no
citizen 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."
101. Dealing
with Articles 29 and 30 at
page 1046, it was observed
as follows:-
"Articles 29
and 30 are set out in Part
III of our Constitution
which guarantees our
fundamental rights. They are
grouped together under the
sub- head "Cultural and
Educational Rights". The
text and the marginal notes
of both the Articles show
that their purpose is to
confer those fundamental
rights on certain sections
of the community which
constitute minority
communities. Under clause
(1) of Article 29 any
section of the citizens
residing in the territory of
India or any part thereof
having a distinct language,
script or culture of its own
has the right to conserve
the same. It is obvious that
a minority community can
effectively conserve its
language, script or culture
by and through educational
institutions and, therefore,
the right to establish and
maintain educational
institutions of its choice
is a necessary concomitant
to the right to conserve its
distinctive language, script
or culture and that is what
is conferred on all
minorities by Article 30(1)
which has hereinbefore been
quoted in full. This right,
however, is subject to
Clause 2 or Article 29 which
provides that no citizen
shall be denied admission
into any educational
institution maintained by
the State or receiving aid
out of State funds on
grounds only of religion,
race, caste, language or any
of them."
102. It had
been, inter alia, contended
on behalf of the state that
if a single member of any
other community is admitted
in a school establish for a
particular minority
community, then the
education institution would
cease to be an educational
institution established by
that particular minority
community. It was contended
that because of Article
29(2), when an educational
institution established by a
minority community gets aid,
it would be precluded from
denying admission to members
of other communities because
of Article 29(2), and that
as a consequence thereof, it
would cease to be an
educational institution of
the choice of the minority
community that established
it. Repelling this argument,
it was observed at pages
1051-51, as follows:-
".....This
argument does not appear to
us to be warranted by the
language of the Article
itself. There is no such
limitation in Article 30(1)
and to accept this
limitation will necessarily
involve the addition of the
words "for their own
community" in the Article
which is ordinarily not
permissible according to
well established rules of
interpretation. Nor is it
reasonable to assume that
the purpose of Article 29(2)
was to deprive minority
educational institutions of
the aid they receive from
the State. To say that an
institution which receives
aid on account of its being
minority educational
institution must not refuse
to admit any member of any
other community only on the
grounds therein mentioned
and then to say that as soon
as such institution admit
such an outsider it will
cease to be a minority
institution is tentamount to
saying that minority
institutions will not, as
minority institutions, be
entitled to any aid. The
real import of Article 29(2)
and Article 30(1) seems to
us to be that they clearly
contemplate a minority
institution with a
sprinkling of outsiders
admitted into it. By
admitting a non-member into
it the minority institution
does not shed its character
and cease to be a minority
institution. Indeed the
object of conservation of
the distinct language,
script and culture of a
minority may be better
served by propagating the
same amongst non-members of
the particular minority
community. In our opinion,
it is not possible to read
this condition into Article
30(1) of the Constitution."
103. It will
be seen that the use of the
expression "sprinkling of
outsiders" in that case
clearly implied the
applicability of Article
29(2) to Article 30(1); the
Court held that when a
minority educational
institution received aid,
outsiders would have to be
admitted. This part of the
state's contention was
accepted, but what was
rejected was the contention
that by taking outsiders, a
minority institution would
cease to be an educational
institution of the choice of
the minority community that
established it. The Court
concluded at page 1062, as
follows:- "...We have
already observed that
Article 30(1) gives two
rights to the minorities,
(1) to establish and (2) to
administer, educational
institutions of their
choice. The right to
administer cannot obviously
include the right to
maladminister. The minority
cannot surely ask for aid or
recognition for an
educational institution run
by them in unhealthy
surroundings, without any
competent teachers,
possessing any semblance of
qualification, and which
does not maintain even a
fair standard of teaching or
which teaches matters
subversive of the welfare of
the scholars. It stands to
reason, then, that the
constitutional right to
administer an educational
institution of their choice
does not necessarily
militate against the claim
of the State to insist that
in order to grant aid the
State may prescribe
reasonable regulations to
ensure the excellence of the
institutions to be
aided....."
104. While
noting that Article 30
referred not only to
religious minorities but
also to linguistic
minorities, it was held that
the Article gave those
minorities the right to
establish educational
institutions of their
choice, and that no
limitation could be placed
on the subjects to be taught
at such educational
institutions and that
general secular education is
also comprehended within the
scope of Article 30(1). It
is to be noted that the
argument addressed and
answered in that case was
whether a minority aided
institution loses its
character as such by
admitting non-minority
students in terms of Article
29(2). It was observed that
the admission of 'sprinkling
of outsiders' will not
deprive the institution of
its minority status. The
opinion expressed therein
does not really go counter
to the ultimate view taken
by us in regard to the
inter-play of Articles 30(1)
and 29(2)
105.
In Rev. Sidhajbhai Sabhai
and Ors. v. State of Bombay
and Anr., this Court had
to consider the validity of
an order issued by the
Government of Bombay whereby
from the academic year
1955-56, 80% of the seats in
the training colleges for
teachers in non-government
training colleges were to be
reserved for the teachers
nominated by the Government.
The petitioner, who belonged
to the minority community,
were, inter alia, running a
training college for
teachers, as also primary
schools. The said primary
schools and college were
conducted for the benefit of
the religious denomination
of the United Church of
Northern India and Indian
Christians generally, though
admission was not denied to
students belonging to other
communities. The petitioners
challenged the government
order requiring 80% of the
seats to be filled by
nominees of the government,
inter alia, on the ground
that the petitioners were
members of a religious
denomination and that they
constituted a religious
minority, and that the
educational institutions had
been established primarily
for the benefit of the
Christian community. It was
the case of the petitioners
that the decision of the
Government violated their
fundamental rights
guaranteed by Articles
30(1), 26(a), (b), (c) and
(d), and 19 (1) (f) and (g).
While interpreting Article
30, it was observed by this
Court at pages 849-850 as
under:- "....All minorities,
linguistic or religious have
by Article 30(1) an absolute
right to establish and
administer educational
institutions of their
choice; and any law or
executive direction which
seeks to infringe the
substance of that right
under Article 30(1) would to
that extent to void. This,
however, is not to say that
it is not open to the State
to impose regulations upon
the exercise of this right.
The fundamental freedom is
to establish and to
administer educational
institutions: it is a right
to establish and administer
what are in truth
educational institutions,
institutions which cater to
the educational needs of the
citizens, or sections
thereof. Regulation made in
the true interests of
efficiency of instruction,
discipline, health,
sanitation, morality, public
order and the like may
undoubtedly be imposed. Such
regulations are not
restrictions on the
substance of the right which
is guaranteed: they secure
the proper functioning of
the institution, in matters
educational."
106. While
coming to the conclusion
that the right of the
private training colleges to
admit students of their
choice was severely
restricted, this Court
referred to the opinion in
the Kerala Education Bill
case, but distinguished it
by observing that the Court
did not, in that case, lay
down any test of
reasonableness of the
regulation. No general
principle on which the
reasonableness of a
regulation may be tested was
sought to be laid down in
the Kerala Education Bill
case and, therefore, it was
held in Sidhajbhai Sabhai's
case that the opinion in
that case was not an
authority for the
proposition that all
regulative measures, which
were not destructive or
annihilative of the
character of the institution
established by the minority,
provided the regulations
were in the national or
public interests, were
valid. In this connection it
was further held at page
856, as follows:-
"The right
established by Article 30(1)
is a fundamental right
declared in terms absolute.
Unlike the fundamental
freedoms guaranteed by
Article 19, it is not
subject to reasonable
restrictions. It is intended
to be a real right for the
protection of the minorities
in the matter of setting up
of educational institutions
of their own choice. The
right is intended to be
effective and is not to be
whittled down by so-called
regulative measures
conceived in the interest
not of the minority
educational institution, but
of the public or the nation
as a whole. If every order
which while maintaining the
formal character of a
minority institution
destroys the power of
administration is held
justifiable because it is in
the public or national
interests, though not in its
interest as an educational
institution, the right
guaranteed by Article 30(1)
will be but a "teasing
illusion", a promise of
unreality. Regulations which
may lawfully be imposed
either by legislative or
executive action as a
condition of receiving grant
or of recognition must be
directed to making the
institution while retaining
its character as a minority
institution effective as an
educational institution.
Such regulation must satisfy
a dual test - the test of
reasonableness, and the test
that it is regulative of the
educational character of the
institution and is conducive
to making the institution an
effective vehicle of
education for the minority
community or other persons
who resort to it."
107. The
aforesaid decision does
indicate that the right
under Article 30(1) is not
so absolute as to prevent
the government from making
any regulation whatsoever.
As already noted
hereinabove, in Sidhajbhai
Sabhai's case, it was laid
down that regulations made
in the true interests of
efficiency of instruction,
discipline, health,
sanitation, morality and
public order could be
imposed. If this is so, it
is difficult to appreciate
how the government can be
prevented from framing
regulations that are in the
national interest, as it
seems to be indicated in the
passage quoted hereinabove.
Any regulation framed in the
national interest must
necessarily apply to all
educational institutions,
whether run by the majority
or the minority. Such a
limitation must necessarily
be read into Article 30. The
right under Article 30(1)
cannot be such as to
override the national
interest or to prevent the
government from framing
regulations in that behalf.
It is, of course, true that
government regulations
cannot destroy the minority
character of the institution
or make the right to
establish and administer a
mere illusion; but the right
under Article 30 is not so
absolute as to be above the
law. It will further be seen
that in Sidhajbhai Sabhai's
case, no reference was made
to Article 29 (2) of the
Constitution. This decision,
therefore, cannot be an
authority for the
proposition canvassed before
us.
108. Out
attention was invited to the
decision in
Rev. Father W. Proost and
Ors. v. The State of Bihar
and Ors., but the said
case has no application
here. In that case, it was
contended, on behalf of the
State of Bihar, that as the
protection to the minority
under Article 29(1) was only
a right to conserve a
distinct language, script or
culture of its own, the
college did not qualify for
the protection of Article
30(1) because it was not
founded to conserve them and
that consequently, it was
open to all sections of the
people. The question,
therefore, was whether the
college could claim the
protection of Section 48-B
of the Bihar Universities
Act read with Article 30(1)
of the Constitution, only if
it proved that the
educational institution was
furthering the rights
mentioned in Article 29(1).
Section 48-B of the Bihar
Universities Act exempted a
minority educational
institution based on
religion or language from
the operation of some of the
other provisions of that
Act. This Court, while
construing Article 30, held
that its width could not be
cut down by introducing in
it considerations on which
Article 29(1) was based.
Article 29 (1) and 30 (1) were
held to create two separate
rights, though it was
possible that they might
meet in a given case. While
dealing with the contention
of the state that the
college would not be
entitled to the protection
under Article 30 (1) because
it was open to all sections
of the people, the Court
referred to the observations
in the Kerala Education Bill
case, wherein it had been
observed that the real
import of Article 29(2) and
Article 30(1) was that they
contemplated a minority
institution with a
sprinkling of outsiders
admitted into it. The Court
otherwise had no occasion to
deal with the applicability
of Article 29(2) to Article
30(1).
109.
In State of Kerala, Etc. v.
Very Rev. Mother Provincial,
Etc. [(1971) 1 SCR 734],
the challenge was to various
provisions of the Kerala
University Act, 1969, whose
provisions effected private
colleges, particularly those
founded by minority
communities in the State of
Kerala. The said provisions,
inter alia, sought to
provide for the manner in
which private colleges were
to be administered through
the constitution of the
governing body or managing
councils in the manner
provided by the Act. Dealing
with Article 30, it was
observed at pages 739-40 as
follows:- "Article 30(1) has
been construed before by
this Court. Without
referring to those cases it
is sufficient to say that
the clause contemplates two
rights which are separated
in point of time. The first
right is the initial right
to establish institutions of
the minority's choice.
Establishment here means the
bringing into being of an
institution and it must be
by a minority community. It
matters not if a single
philanthropic individual
with his own means, founds
the institution or the
community at large
contributes the funds. The
position in law is the same
and the intention in either
case must be to found an
institution for the benefit
of a minority community by a
member of that community. It
is equally irrelevant that
in addition to the minority
community others from other
minority communities or even
from the majority community
can take advantage of these
institutions. Such other
communities bring in income
and they do not have to be
turned away to enjoy the
protection.
The next part
of the right relates to the
administration of such
institutions. Administration
means 'management of the
affairs' of the institution.
This management must be free
of control so that the
founders or their nominees
can mould the institution as
they think fit, and in
accordance with their ideas
of how the interest of the
community in general and the
institution in particular
will be best served. No part
of this management can be
taken away and vested in
another body without an
encroachment upon the
guaranteed right."
The Court,
however, pointed out that an
exception to the right under
Article 30 was the power
with the state to regulate
education, educational
standards and allied
matters. It was held that
the minority institutions
could not be allowed to fall
below the standards of
excellence expected of
educational institutions or
under guise of the exclusive
right of management, allowed
to decline to follow general
pattern. The Court stated
that while the management
must be left to minority,
they may be compelled to
keep in step with others.
110. The
interplay of Article 29 and
Article 30 came up for
consideration again before
this Court in the D.A.V.
College case [1971 (Supp.)
SCR 688]. Some of the
provisions of the Guru Nanak
University Act established
after the reorganization of
the State of Punjab in 1969
provided for the manner in
which the governing body was
to be constituted; the body
was to include a
representative of the
University and a member of
the College. These and some
other provisions were
challenged on the ground
that they were violative of
Article 30. In this
connection at page 695, it
was observed as follows:-
"It will be
observed that Article 29 (1)
is wider than Article 30 (1),
in that, while any Section
of the citizens including
the minorities, can invoke
the rights guaranteed under
Article 29(1), the rights
guaranteed under Article
30 (1) are only available to
the minorities based on
religion or language. It is
not necessary for Article
30 (1) that the minority
should be both a religion
minority as well as a
linguistic minority. It is
sufficient if it is one or
the other or both. A reading
of these two Articles
together would lead us to
conclude that a religious or
linguistic minority has a
right to establish and
administer educational
institutions of its choice
for effectively conserving
its distinctive language,
script or culture, which
right however is subject to
the regulatory power of the
State for maintaining and
facilitating the excellence
of its standards. This right
is further subject to Clause
(2) of Article 29 which
provides that no citizen
shall be denied admission
into any educational
institution which is
maintained by the State or
receives aid out of State
funds, on grounds only of
religion, race, caste,
language or any of them.
While this is so these two
articles are not
inter-linked nor does it
permit of their being always
read together."
Though it was
observed that Article 30 (1)
is subject to 29 (2), the
question whether the
preference to minority
students is altogether
excluded, was not
considered.
111. One of
the questions that arose in
this case was as to whether
the petitioner was a
minority institution. In
this case, it was also
observed that the Hindus of
Punjab were a religion
minority in the State of
Punjab and that, therefore,
they were entitled to the
protection of Article 30(1).
Three of the provisions,
which were sought to be
challenged as being
violative of Article 30,
were Clauses 2(1), 17 and 18
of the Statutes framed by
the University under Section
19 of the University Act.
Clause 2(1)(a) provided
that, for seeking
affiliation, the college was
to have a governing body of
not more than 20 persons
approved by the Senate and
including, amongst others,
two representatives of the
University and a member of
the College. Clause 17
required the approval of the
Vice- Chancellor for the
staff initially appointed by
the College. The said
provision also provided that
all subsequent changes in
the staff were to be
reported to the
Vice-Chancellor for his/her
approval. Clause 18 provided
that non-government colleges
were to comply with the
requirements laid down in
the ordinances governing the
service and conduct of
teachers in non- government
colleges, as may be framed
by the University. After
referring to Kerala
Education Bill, Sidhajb
(SIC) Sabhai and Rev. Father
W. Proost, this Court held
that there was no
justification for the
provisions contained in
Clause 2(1)(a) and Clause 17
of the statutes as the
interfered with the rights
of management of the
minority educational
institutions, P. Jaganmohan
Reddy, J., observed that
"these provisions cannot,
therefore, be made as
conditions of affiliation,
the non-compliance of which
would involved
disaffiliation and
consequently they will have
to be struck down as
offending Article 30(1)."
112. Clause
18, however, was held not to
suffer from the same vice as
Clause 17 because the
provision, insofar as it was
applicable to the minority
institutions, empowered the
University to prescribe
by-regulations governing the
service and conduct of
teachers, and that this was
in the larger interest of
the institutions, and in
order to ensure their
efficiency and excellence.
In this connection, it was
observed at page 709, that:-
"Uniformity
in the conditions of service
and conduct of teachers in
all non-Government Colleges
would make for harmony and
avoid frustration. Of course
while the power to make
ordinances in respect of the
matters referred to is
unexceptional the nature of
the infringement of the
right, if any, under Article
30(1) will depend on the
actual purpose and import of
the ordinance when made and
the manner in which it is
likely to affect the
administration of the
educational institution,
about which it is not
possible now to predicate."
113.
In The Ahmedabad St. Xaviers
College Society and Anr.
Etc. v. State of Gujarat and
Anr., this Court had to
consider the constitutional
validity of certain
provisions of the Gujarat
University Act, 1949,
insofar as they were made to
apply to the minority
Christian institution. The
impugned provisions, inter
alia, provided that the
University may determine
that all instructions,
teaching and training in
courses of studies, in
respect of which the
University was competent to
hold examinations, would be
conducted by the University
and would be imparted by the
teachers of the University.
Another provision provided
that new colleges that may
seek affiliation, were to be
the constituent colleges of
the University. The Court
considered the scope and
ambit of the rights of the
minorities, whether based on
religion or language, to
establish and administer
educational institutions of
their choice under Article
30(1) of the Constitution.
In dealing with this aspect,
Ray, C.J., at page 192,
while considering Article 25
to 30, observed as follows:-
"Every
section of the public, the
majority as well as minority
has rights in respect of
religion as contemplated in
Articles 25 and 26 and
rights in respect of
language, script, culture as
contemplated in Article 29.
The whole object of
conferring the right on
minorities under Article 30
is to ensure that there will
be equality between the
majority and the minority.
If the minorities do not
have such special protection
they will be denied
equality."
114.
Elaborating on the meaning
and intent of Article 30,
the learned Chief Justice
further observed as
follows:-
"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 choice for the purpose
of giving their children the
best general education to
make them complete men and
women of the country. The
minorities are given this
protection under Article 30
in order to preserve and
strengthen the integrity and
unity of the country. The
sphere of general secular
education is intended to
develop the commonness of
boys and girls of our
country. This is in the true
spirit of liberty, equality
and fraternity through the
medium of education. If
religious or linguistic
minorities are not given
protection under Article 30
to establish and administer
educational institutions of
their choice, they will feel
isolated and separate.
General secular education
will open doors of
perception and act as the
natural light of mind for
our countrymen to live in
the whole."
115. The
Court then considered
whether the religious and
linguistic minorities, who
have the right to establish
and administer educational
institutions of their
choice, had a fundamental
right to affiliation.
Recognizing that the
affiliation to a University
consisted of two parts, the
first part relating to
syllabi, curricula, courses
of instruction, the
qualifications of teachers,
library, laboratories,
conditions regarding health
and hygiene of students
(aspects relating to
establishment of educational
institutions), and the
second part consisting of
terms and conditions
regarding the management of
institutions, it was held
that with regard to
affiliation, a minority
institution must follow the
statutory measures
regulating educational
standards and efficiency,
prescribed courses of study,
courses of instruction, the
principles regarding the
qualification of teachers,
educational qualifications
for entry of students into
educational institutions,
etc.
116. While
considering the right of the
religious and linguistic
minorities to administer
their educational
institutions, it was
observed by Ray, C.J., at
page 194, as follows:-
".....The
right to administer is said
to consist of four principal
matters. First is the right
to choose its managing or
governing body. It is said
that the founders of the
minority institution have
faith and confidence in
their own committee or body
consisting of persons
selected by them. Second is
the right to choose its
teachers. It is said that
minority institutions want
teachers to have
compatibility with the
ideals, aims and aspirations
of the institution. Third is
the right not to be
compelled to refuse
admission to students. In
other words, the minority
institutions want to have
the right to admit students
of their choice subject to
reasonable regulations about
academic qualifications.
Fourth is the right to use
its properties and assets
for the benefit of its own
institution."
117. While
considering this right to
administer,it was held that
the same was not an absolute
right and that the right was
not free from regulation.
While referring to the
observations of Das, C.J.,
in the Kerala Education Bill
case, it was reiterated in
the St. Xaviers College case
that the right to administer
was not a right to
mal-administer. Elaborating
the minority's right to
administer at page 196, it
was observed as follows:-
".....The minority
institutions have the right
to administer institutions.
This right implies the
obligation and duty of the
minority institutions to
render the very best to the
students. In the right of
administration, checks and
balances in the shape of
regulatory measures are
required to ensure the
appointment of good teachers
and their conditions of
service. The right to
administer is to be tempered
with regulatory measures to
facilitate smooth
administration. The best
administration will reveal
no trace colour of minority.
A minority institution
should shine in exemplary
eclecticism in the
administration of the
institution. The best
compliment that can be paid
to a minority institution is
that it does not rest on or
proclaim its minority
character."
118. Ray,
C.J., concluded by observing
at page 200, as follows:-
"The ultimate goal of a
minority institution too
imparting general secular
education is advancement of
learning. This Court has
consistently held that it is
not only permissible but
also desirable to regulate
everything in educational
and academic matters for
achieving excellence and
uniformity in standards of
education.
In the field
of administration it is not
reasonable to claim that
minority institutions will
have complete autonomy.
Checks on the administration
may be necessary in order to
ensure that the
administration is efficient
and sound and will serve the
academic needs of the
institution. The right of a
minority to administer its
educational institution
involves, as part of it, a
correlative duty of good
administration."
119. In a
concurrent judgment, while
noting that "Clause (2) of
Article 29 forbids the
denial of admission to
citizens into any
educational institution
maintained by the State or
receiving aid out of State
funds on grounds only of
religion, race, caste,
language or any of then",
Khanna, J. then examined
Article 30, and observed at
page 222, as follows:-
"Clause (1) of Article 30
gives right to all
minorities, whether based on
religion or language, to
establish and administer
educational institutions of
their choice Analyzing that
clause it would follow that
the right which has been
conferred by the clause is
no two types of minorities.
Those minorities may be
based either on religion or
on language. The right
conferred upon the said
minorities is to establish
and administer educational
institutions of their
choice. The word "establish"
indicates the rights to
bring into existence, while
the right to administer an
institution means the right
to effectively manage and
conduct the affairs of the
institution. Administration
connotes management of the
affairs of the institution.
The management must be free
of control so that the
founders or their nominees
can mould the institution as
they think fit and in
accordance with their ideas
of how the interest of the
community in general and the
institution in particular
will be best served. The
words "of their choice"
qualify the educational
institutions and show that
the educational institutions
established and administered
by the minorities need not
be of some particular class;
the minorities have the
right and freedom to
establish and administer
such educational
institutions as they choose.
Clause (2) of Article 30
prevents the State from
making discrimination in the
matter of grant of aid to
any educational institution
on the ground that the
institution is under the
management of a minority
whether based on religion or
language.
120.
Explaining the rationale
behind Article 30, it was
observed at page 224, as
follows:-
"The idea of
giving some special rights
to the minorities is not to
have a kind of a privileged
or pampered section of the
population but to give to
the minorities a sense of
security and a feeling of
confidence. The great
leaders of India since time
immemorial had preached the
doctrine of tolerance and
catholicity of outlook.
Those noble ideas were
enshrined in the
Constitution. Special rights
for minorities were designed
not to create inequality.
Their real effect was to
bring about equality by
ensuring the preservation of
the minority institutions
and by guaranteeing to the
minorities autonomy in the
matter of the administration
of these institutions. The
differential treatment for
the minorities by giving
them special rights is
intended to bring about an
equilibrium, so that the
ideal of equality may not be
reduced to a mere abstract
idea but should become a
living reality and result in
true, genuine equality an
equality not merely in
theory but also in fact."
121. While
advocating that provisions
of the Constitution should
be construed according to
the liberal, generous and
sympathetic approach, and
after considering the
principles which could be
discerned by him from the
earlier decisions of this
Court, Khanna, J., observed
at page 234, as follows:-
"...The
minorities are as much
children of the soil as the
majority and the approach
has been to ensure that
nothing should be done as
might deprive the minorities
of a sense of belonging of a
feeling of security, of a
consciousness of equality
and of the awareness that
the conservation of their
religion, culture, language
and script as also the
protection of their
educational institutions is
a fundamental right
enshrined in the
Constitution. The same
generous, liberal and
sympathetic approach should
weigh with the courts in
construing Articles 29 and
30 as marked the
deliberations of the
Constitution-makers in
drafting those articles and
making them part of the
fundamental rights. The
safeguarding of the interest
of the minorities amongst
sections of population is as
important as the protection
of the interest amongst
individuals of persons who
are below the age of
majority or are otherwise
suffering from some kind of
infirmity. the Constitution
and the laws made by
civilized nations,
therefore, generally contain
provisions for the
protection of those
interests. It can, indeed,
be said to be an index of
the level of civilization
and catholicity of a nation
as to how far their
minorities feel secure and
are not subject to any
discrimination or
suppression."
122. The
learned Judge then observed
that the right of the
minorities to administer
educational institutions did
not prevent the making of
reasonable regulations in
respect of these
institutions. Recognizing
that the right to administer
educational institutions
could not include the right
to mal-administer, it was
held that regulations could
be lawfully imposed, for the
receiving of grants and
recognition, while
permitting the institution
to retain its character as a
minority institution. The
regulation "must satisfy a
dual test -- the test of
reasonableness, and the test
that it is regulative of the
educational character of the
institution and is
conductive to making the
institution an effective
vehicle of education for the
minority community or other
persons who resort to it."
It was permissible for the
authorities to prescribes
regulations, which must be
complied with, before a
minority institution could
seek or retain affiliation
and recognition. But it was
also stated that the
regulations made by the
authority should not impinge
upon the minority character
of the institution.
Therefore, a balance has to
be kept between the two
objectives -- that of
ensuring the standard of
excellence of the
institution, and that of
preserving the right of the
minorities to establish and
administer their educational
institutions. Regulations
that embraced and reconciled
the two objectives could be
considered to be reasonable.
This, in our view, is the
correct approach to the
problem.
123.
After referring to the
earlier cases in
relation to the
appointment of teachers,
it was noted by Khanna,
J., that the conclusion
which followed was that
a law which interfered
with a minority's choice
of qualified teachers,
or its disciplinary
control over teachers
and other members of the
staff of the
institution, was void,
as it was violative of
Article 30(1). While it
was permissible for the
state and its
educational authorities
to prescribe the
qualifications of
teachers, it was held
that once the teachers
possessing the requisite
qualifications were
selected by the
minorities for their
educational
institutions, the state
would have no right to
veto the selection of
those teachers. The
selection and
appointment of teachers
for an educational
institution was regarded
as one of the essential
ingredients under
Article 30(1). The
Court's attention was
drawn to the fact that
in the Kerala Education
Bill case, this Court
has opined that Clauses
(11) and (12) made it
obligatory for all aided
schools to select
teachers from a panel
selected from each
district by the Public
Service Commission and
that no teacher of an
aided school could be
dismissed, removed or
reduced in rank without
the previous sanction of
the authorized officer.
At page 245, Khanna, J.,
observed that in cases
subsequent to the
opinion in the Kerala
Education Bill case,
this Court had held
similar provisions as
Clause (11) and Clause
(12) to be violative of
Article 30(1) of the
minority institution. He
then observed as
follows:- "...The
opinion expressed by
this Court in Re Kerala
Education Bill (supra)
was of an advisory
character and though
great weight should be
attached to it because
of its persuasive value,
the said opinion cannot
override the opinion
subsequently expressed
by this Court in
contested cases. It is
the law declared by this
Court in the subsequent
contested cases which
would have a binding
effect. The words "as at
present advised" as well
as the preceding
sentence indicate that
the view expressed by
this Court in Re Kerala
Education Bill in this
respect was hesitant and
tentative and not a
final view in the
matter...."
124.
In Lilly Kurian v. Sr.
Lewina and Ors.,
this Court struck down
the power of the
Vice-Chancellor to veto
the decision of the
management to impose a
penalty on a teacher. It
was held that the power
of the Vice- Chancellor,
while hearing an appeal
against the imposition
of the panel was
uncanalized and
unguided. In Christian
Medical College Hospital
Employees' Union and Anr.
v. Christian Medical
College Vellore
Association and Ors.,
this Court upheld the
application of
industrial law to
minority colleges, and
it was held that
providing a remedy
against unfair
dismissals would not
infringe Article 30. In Gandhi Faizeam
College Shahajhanpur v.
University of Agra and
Anr. [(1975) 3 SCR
810], a law which sought
to regulate the working
of minority institutions
by providing that a
broad-based management
committee could be
re-constituted by
including therein the
Principal and the
senior-most teacher, was
valid and not violative
of the right under
Article 30(1) of the
Constitution. In All
Saints High School,
Hyderabad Etc. Etc. v.
Government of A.P. and
Ors. etc, a
regulation providing
that no teacher would be
dismissed, removed, or
reduced in rank, or
terminated otherwise
except with the prior
approval of the
competent authority, was
held to be invalid, as
it sought to confer an
unqualified power upon
the competent authority.
In Frank Anthony Public
School Employees
Association v. Union of
India and Ors., the
regulation providing for
prior approval for
dismissal was held to be
invalid, while the
provision for an appeal
against the order of
dismissal by an employee
to a Tribunal was
upheld. The regulation
requiring prior approval
before suspending an
employee was held to be
valid, but the
provision, which
exempted unaided
minority schools from
the regulation that
equated the pay and
other benefits of
employees of recognized
schools with those in
schools run by the
authority, was held to
be invalid and violative
of the equality clause.
It was held by this
Court that the
regulations regarding
pay and allowances for
teachers and staff would
not violate Article 30.
125. In
the St. Stephen's
College case, the right
of minorities to
administer educational
institutions and the
applicability of Article
29(2) to an institution
to which Article 30(1)
was applicable came up
for consideration. St.
Stephen's College
claimed to be a minority
institution, which was
affiliated to Delhi
University, the College
had its own provisions
with regard to the
admission of students.
This provision
postulated that
applications would be
invited by the college
by a particular date.
The applications were
processed and a cut-off
percentage for each
subject was determined
by the Head of the
respective Departments
and a list of
potentially suitable
candidates was prepared
on the basis of 1:4 and
1:5 ratios for Arts and
Science students
respectively, and they
were then called for an
interview (i.e., for
every available seat in
the Arts Department,
four candidates were
called for interviews;
similarly, for every
available seat in the
Science Department, five
candidates were called
for interviews). In
respect of Christian
Students, a relaxation
of upto 10% was given in
determining the cut-off
point. Thereafter, the
interviews were
conducted and admission
was granted. The Delhi
University, however, had
issued a circular, which
provided that admission
should be granted to the
various courses purely
on the basis of merit,
i.e., the percentage of
marks secured by the
students in the
qualifying examination.
The said circular did
not postulate any
interview. Thereafter,
the admission policy of
St. Stephen's College
was challenged by a
petition under Article
32. It was contended by
the petitioners that the
College was bound to
follow the University
policy, rules and
regulations regarding
admission, and further
argued that it was not a
minority institution,
and in the alternative,
it was not entitled to
discriminate against
students on the ground
of religion, as the
college was receiving
grant-in-aid from the
government, and that
such discrimination was
violative of Article
29(2). The College had
also filed a writ
petition in the Supreme
Court taking the stand
that it was a religious
minority institution,
and that the circular of
the University regarding
admission violated its
fundamental right under
Article
30. This
Court held that St.
Stephen's College was a
minority institution.
With regard to the
second question as to
whether the college was
bound by the University
circulars regarding
admission, this Court,
by a majority of 4-1,
upheld the admission
procedure used by the
College, even though it
was different from the
one laid down by the
University. In this
context, the contention
of the College was that
it had been following
its own admission
programme for more than
a hundred years and that
it had built a tradition
of excellence in a
number of distinctive
activities. The College
challenged the
University circular on
the ground that it was
not regulatory in
nature, and that it
violated its right under
Article 30. Its
submission was that if
students were admitted
purely on the basis of
marks obtained by them
in the qualifying
examination, it would
not be possible for any
Christian student to
gain admission. The
college had also found
that unless a concession
was afforded, the
Christian students could
not be brought within
the zone of
consideration as they
generally lacked merit
when compared to the
other applicants. This
Court referred to the
earlier decisions, and
with regard to Article
30(1), observed at page
596, paragraph 54, as
follows:- "The
minorities whether based
on religion or language
have the right to
establish and administer
educational institutions
of their choice. The
administration of
educational institutions
of their choice under
Article 30(1) means
'management of the
affairs of the
institution'. This
management must be free
from control so that the
founder or their
nominees can mould the
institution as they
think fit, and in
accordance with their
ideas of how the
interests of the
community in general and
the institution in
particular will be best
served. But the
standards of education
are not a part of the
management as such. The
standard concerns the
body politic and is
governed by
considerations of the
advancement of the
country and its people.
Such regulations do not
bear directly upon
management although they
may indirectly affect
it. The State, therefore
has the right to
regulate the standard of
education and allied
matters. Minority
institutions cannot be
permitted to fall below
the standards of
excellence expected of
educational
institutions. They
cannot decline to follow
the general pattern of
education under the
guise of exclusive right
of management. While the
management must be left
to them, they may be
compelled to keep in
step with others...."
126. It
was further noticed that
the right under Article
30(1) had to be read
subject to the power of
the state to regulate
education, educational
standards and allied
matters. In this
connection, at pages
598-99, paragraph 59, it
was observed as
follows:-
"The need
for a detailed study on
this aspect is indeed
not necessary. The right
to minorities whether
religious or linguistic,
to administer
educational institutions
and the power of the
State to regulate
academic matters and
management is now fairly
well settled. The right
to administer does not
include the right to
maladminister. The State
being the controlling
authority has right and
duty to regulate all
academic matters.
Regulations which will
serve the interests of
students and teachers,
and to preserve the
uniformity in standards
of education among the
affiliated institutions
could be made. The
minority institutions
cannot claim immunity
against such general
pattern and standard or
against general laws
such as laws relating to
law and order, health,
hygiene, labor
relations, social
welfare legislations,
contracts, torts etc.
which are applicable to
all communities. So long
as the basic right of
minorities to manage
educational institution
is not taken away, the
State is competent to
make regulatory
legislation.
Regulations, however,
shall not have the
effect of depriving the
right of minorities to
educate their children
in their own
institution. That is a
privilege which is
implied in the right
conferred by Article
30(1).
127.
Dealing with the
question of the
selection of students,
it was accepted that the
right to select students
for admission was a part
of administration, and
that this power could be
regulated, but it was
held that the regulation
must be reasonable and
should be conducive to
the welfare of the
minority institution or
for the betterment of
those who resort to it.
Bearing this principle
in mind, this Court took
note of the fact that if
the College was to admit
students as per the
circular issued by the
University, it would
have to deny admissions
to the students
belonging to the
Christian community
because of the
prevailing situation
that even after the
concession, only a small
number of minority
applicants would gain
admission. It was the
case of the College that
the selection was made
on the basis of the
candidate's academic
record, and his/her
performance at the
interview keeping in
mind his/her all round
competence, his/her
capacity to benefit from
attendance at the
College, as well as
his/her capacity to
benefit from attendance
at the College, as well
as his/her potential to
contribute to the life
of the College. While
observing that the oral
interview as a
supplementary test and
not as the exclusive
test for assessing the
suitability of the
candidates for college
admission had been
recognized by this
Court, this Court
observed that the
admission programme of
the college "based on
the test of promise and
accomplishment of
candidates seems to be
better than the blind
method of selection
based on the marks
secured in the
qualifying
examinations." The Court
accordingly held that
St. Stephen's College
was not bound by the
impugned circulars of
the University. This
Court then dealt with
the question as to
whether a preference in
favour of, or a
reservation of seats for
candidates belonging to,
its own community by the
minority institutions
would be invalid under
Article 29(2) of the
Constitution. After
referring to the
Constituent Assembly
Debates and the
proceedings of the Draft
Committee that led to
the incorporation of
Articles 29 and 30, this
Court proceeded to
examine the question of
the true import and
effect of Articles 29(2)
and 30(1) of the
Constitution. On behalf
of the institutions, it
was argued that a
preference given to
minority candidates in
their own educational
institutions, on the
ground that those
candidates belonged to
that minority community,
was not violative of
Article 29(2), and that
in the exercise of
Article 30(1), the
minorities were entitled
to establish and
administer educational
institutions for the
exclusive advantage of
their own community's
candidates. This
contention was not
accepted by this Court
on two grounds. Firstly,
it was held that
institutional preference
to minority candidates
based on religion was
apparently an
institutional
discrimination on the
forbidden ground of
religion -- the Court
stated that "if an
educational institution
says yes to one
candidate but says no to
other candidate on the
ground of religion, it
amounts to
discrimination on the
ground of religion. The
mandate of Article 29(2)
is that there shall not
be any such
discrimination." It
further held that, as
pointed out in the
Kerala Education Bill
case, the minorities
could not establish
educational institutions
for the benefit of their
own community alone. For
if such was the aim,
Article 30(1) would have
been differently worded
and it would have
contained the words "for
their own community". In
this regard, it would be
useful to bear in mind
that the Court at page
607, paragraph 81,
noticed that:-
"Even in
practice, such claims
are likely to be met
with considerable
hostility. It may not be
conducive to have a
relatively homogeneous
society. It may lead to
religious bigotry which
is the bane of mankind.
In the nation building
with secular character
sectarian schools or
colleges, segregated
faculties or
universities for
imparting general
secular education are
undesirable and they may
undermine secular
democracy. They would be
inconsistent with the
central concept of
secularism and equality
embedded in the
Constitution. Every
educational institution
irrespective of
community to which it
belongs is a 'melting
pot' in our national
life. The students and
teachers are the
critical ingredients. It
is there they develop
respect for, and
tolerance of, the
cultures and beliefs of
others. It is essential
therefore, that there
should be proper mix of
students of different
communities in all
educational
institutions.
128. The
Court then dealt with
the contention on behalf
of the University that
the minority
institutions receiving
government aid were
bound by the mandate of
Article 29(2), and that
they could not prefer
candidates from their
own community. The Court
referred to the decision
in the case of Champakam
Dorairajan (supra), but
observed as follows:
".....the fact that
Article 29(2) applied to
minorities as well as
non- minorities did not
mean that it was
intended to nullify the
special right guaranteed
to minorities in Article
30(1). Article 29(2)
deals with non-
discrimination and is
available only to
individuals. General
equality by
non-discrimination is
not the only need of
minorities. Minority
rights under majority
rule implies more than
non-discrimination;
indeed, it begins with
non-discrimination.
Protection of interests
and institutions and the
advancement of
opportunity are just as
important. Differential
treatment that
distinguishes them from
the majority is a must
to preserve their basic
characteristics."
129.
Dealing with the
submission that in a
secular democracy the
government could not be
utilized to promote the
interest of any
particular community,
and that the minority
institution was not
entitled to state aid as
of right, this Court, at
page 609, paragraph 87,
held as follows:- "It is
quite true that there is
no entitlement to State
grant for minority
educational
institutions. There was
only a stop-gap
arrangement under
Article 337 for the
Anglo-Indian community
to receive State grants.
There is no similar
provision for other
minorities to get grant
from the State. But
under Article 30(2), the
State is under an
obligation to maintain
equality of treatment in
granting aid to
educational
institutions. Minority
institutions are not to
be treated differently
while giving financial
assistance. They are
entitled to get the
financial assistance
much the same way as the
institutions of the
majority communities."
130. It
was further held that
the state could lay down
reasonable conditions
for obtaining
grant-in-aid and for its
proper utilization, but
that the state had no
power to compel minority
institutions to give up
their rights under
Article 30(1). After
referring to the Kerala
Education Bill case and
Sidhajbhai Sabhai's
case, the Court observed
at page 609, paragraph
88, as follows:-
"....In
the latter case this
court observed at SCR
pages 856-57 that the
regulation which may
lawfully be imposed as a
condition of receiving
grant must be directed
in making the
institution an effective
minority educational
institution. The
regulation cannot change
the character of the
minority institution.
Such regulations must
satisfy a dual test; the
test of reasonableness,
and the test that it is
regulative of the
educational character of
the institution. It must
be conducive to making
the institution and
effective vehicle of
education for the
minority community or
other persons who resort
to it. It is thus
evident that the rights
under Article 30(1)
remain unaffected even
after securing financial
assistance from the
government."
131.
After referring to the
following observations
in D.A.V. College case,
"...The right of a
religious or linguistic
minority to establish
and administer
educational institutions
of its choice under
Article 30(1) is subject
to the regulatory power
of the State for
maintaining and (sic)ng
the excellence of its
standards. This right is
further subject to
Article 29(2), which
provides that no citizen
shall be denied
admission into any
educational institution
which is maintained by
the State or receives
aid out of State funds,
on grounds only of
religion, race, caste,
language or any of
them...."
the
learned Judges remarked
at page 610 (para 91)
that in the said case,
the Court was not
deciding the question
that had arisen before
them.
132.
According to the learned
Judges, the question of
the interplay of Article
29(2) with Article 30 (1)
had arisen in that case
(St. Stephen's case) for
the first time, and had
not been considered by
the Court earlier, they
observed that "we are on
virgin soil, not on
trodden ground". Dealing
with the interplay of
these two Articles, it
was observed, at page
612, paragraph 96, as
follows:-
"The
collective minority
right is required to be
made functional and is
not to be reduced to
useless lumber. A
meaningful right must be
shaped, moulded and
created under Article
30 (1), while at the same
time affirming the right
of individuals under
Article 29 (2). There is
need to strike a balance
between the two
competing rights. It is
necessary to mediate
between Article 29 (2)
and Article 30(1),
between letter and
spirit of these
articles, between
traditions of the past
and the convenience of
the present, between
society's need for
stability and its need
for change."
133. The
two competing rights are
the right of the citizen
not to be denied
admission granted under
Article 29(2), and right
of the religious or
linguistic minority to
administer and establish
an institution of its
choice granted under
Article 30 (1). While
treating Article 29 (2)
as a facet of equality,
the Court gave a
contextual
interpretation to
Articles 29 (2) and 30 (1)
while rejecting the
extreme contention on
both sides, i.e., on
behalf of the
institutions that
Article 29 (2) did not
prevent a minority
institution to
preferably admit only
members belonging to the
minority community, and
the contention on behalf
of the State that
Article 29 (2) prohibited
any preference in favour
of a minority community
for whose benefit the
institution was
established. The Court
concluded, at pages
613-14, para 102, as
follows:-
"In the
light of all these
principles and factors,
and in view of the
importance which the
Constitution attaches to
protective measures to
minorities under Article
30(1), the minority
aided educational
institutions are
entitled to prefer their
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 cent of the
annual admission. The
minority institutions
shall make available at
least 50 per cent of the
annual admission to
members of communities
other than the minority
community. The admission
of other community
candidates shall be done
purely on the basis of
merit."
134. If
we keep these basic
features, as highlighted
in St. Stephen's case,
in view, then the real
purposes underlying
Articles 29 (2) and 30
can be better
appreciated.
135. We
agree with the
contention of the
learned Solicitor
General that the
Constitution in Part III
does not contain or give
any absolute right. All
rights conferred in Part
III of the Constitution
are subject to at least
other provisions of the
said Part. It is
difficult to comprehend
that the framers of the
Constitution would have
given such an absolute
right to the religious
or linguistic minority
which would enable them
to establish and
administer educational
institutions in manner
so as to be in conflict
with the other Parts of
the Constitution. We
find difficult to accept
that in the
establishment and
administration of
educational institutions
by the religious and
linguistic minorities,
no law of the land, even
the Constitution, is to
apply to them.
136.
Decisions of this Court
have held that the right
to administer does not
include the right to
mal-administer. It has
also been held that the
right to administer is
not absolute, but must
be subject to reasonable
regulations for the
benefit of the
institutions as the
vehicle of education,
consistent with national
interest. General laws
of the land applicable
to all persons have been
held to be applicable to
the minority
institutions also -- for
example, laws relating
to taxation, sanitation,
social welfare, economic
regulation, public order
and morality.
137. It
follows from the
aforesaid decisions that
even though the words of
Article 30 (1) are
unqualified, this Court
has held that at least
certain other laws of
the land pertaining to
health, morality and
standards of education
apply. The right under
Article 30 (1) has,
therefore, not been held
to be absolute or above
other provisions of the
law, and we reiterate
the same. By the same
analogy, there is no
reason why regulations
or conditions
concerning, generally,
the welfare of students
and teachers should not
be made applicable in
order to provide a
proper academic
atmosphere, as such
provisions do not in any
way interfere with the
right of administration
or management under
Article 30(1).
138. As
we look at it, Article
30 (1) is a sort of
guarantee or assurance
to the linguistic and
religious minority
institutions of their
right to establish and
administer educational
institutions of their
choice. Secularism and
equality being two of
the basic features of
the Constitution,
Article 30(1) ensures
protection to the
linguistic and religious
minorities, thereby
preserving the
secularism of the
country. Furthermore,
the principles of
equality must
necessarily apply to the
enjoyment of such
rights. No law can be
framed that will
discriminate against
such minorities with
regard to the
establishment and
administration of
educational institutions
vis-a-vis other
educational
institutions. Any law or
rule or regulation that
would put the
educational institutions
run by the minorities at
a disadvantage when
compared to the
institutions run by the
others will have to be
struck down. At the same
time, there also cannot
be any reverse
discrimination. It was
observed in St. Xaviers
College case, at page
192, that "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 dented
equality." In other
words, the essence of
Article 30(1) is to
ensure equal treatment
between the majority and
the minority
institutions. No one
type or category of
institution should be
disfavoured or, for that
matter, receive more
favourable treatment
than another. Laws of
the land, including
rules and regulations,
must apply equally to
the majority
institutions as well as
to the minority
institutions. The
minority institutions
must be allowed to do
what the non- minority
institutions are
permitted to do.
139. Like
any other private
unaided institutions,
similar unaided
educational institutions
administered by
linguistic or religious
minorities are assured
maximum autonomy in
relation thereto; e.g.,
method of recruitment of
teachers, charging of
fees and admission of
students. They will have
to comply with the
conditions of
recognition, which
cannot be such as to
whittle down the right
under Article 30.
140.
We have now to
address the question
of whether Article
30 gives a right to
ask for a grant or
aid from the state,
and secondly, if it
does get aid, to
examine to what
extent its autonomy
in administration,
specifically in the
matter of admission
to the educational
institution
established by the
community, can be
curtailed or
regulated.
141.
The grant of aid is
not a constitutional
imperative. Article
337 only gives the
right to assistance
by way of grant to
the Anglo-Indian
community for a
specified period of
time. If no aid is
granted to anyone,
Article 30(1) would
not justify a demand
for aid, and it
cannot be said that
the absence of aid
makes the right
under Article 30(1).
The founding fathers
have not
incorporated the
right to grants in
Article 30, whereas
they have done so
under Article 337;
what, then, is the
meaning, scope and
effect of Article
30(2)? Article 30(2)
only means what it
states, viz that a
minority institution
shall not be
discriminated
against when aid to
educational
institutions is
granted. In other
words the state
cannot, when it
chooses to grant aid
to educational
institutions, deny
aid to a religious
or linguistic
minority institution
only on the ground
that the management
of that institution
is with the
minority. We would,
however, like to
clarify that if an
object surrender of
the right to
management is made a
condition of aid,
the denial of aid
would be violative
of Article 30(2).
However, conditions
of aid that do not
involve a surrender
of the substantial
right of management
would not be
inconsistent with
constitutional
guarantees, even if
they indirectly
impinge upon some
fact of
administration. If,
however, aid were
denied on the ground
that the educational
institution is under
the management of a
minority, then such
a denial would be
completely invalid.
142.
The implication of
Article 30(2) is
also that it
recognizes that the
minority nature of
the institution
should continue,
notwithstanding the
grant of aid. In
other words, when a
grant is given to
all institutions for
imparting secular
education, a
minority institution
is also entitled to
receive it subject
to the fulfillment
of the requisite
criteria, and the
state gives the
grant knowing that a
linguistic or
minority educational
institution will
also receive the
same. Of course, the
state cannot be
compelled to grant
aid, but the receipt
of aid cannot be a
reason for altering
the nature of
character of the
incipient
educational
institution.
143.
This means that the
right under Article
30(1) implies that
any grant that is
given by the state
to the minority
institution cannot
have such conditions
attached to it,
which will in any
way dilute or
abridge the rights
of the minority
institution to
establish and
administer that
institution. The
conditions that can
normally be
permitted to be
imposed, on the
educational
institutions
receiving the grant,
must be related to
the proper
utilization of the
grant and
fulfillment of the
objectives of the
grant. Any such
secular conditions
so laid, such as a
proper audit with
regard to the
utilization of the
funds and the manner
in which the funds
are to be utilized,
will be applicable
and would not dilute
the minority status
of the educational
institutions. Such
conditions would be
valid if they are
also imposed on
other educational
institutions
receiving the grant.
144.
It cannot be argued
that no conditions
can be imposed while
giving aid to a
minority
institution. Whether
it is an institution
run by the majority
or the minority, all
conditions that have
relevance to the
proper utilization
of the grant-in-aid
by an educational
institution can be
imposed. All that
Article 30(2) states
is that on the
ground that an
institution is under
the management of a
minority, whether
based on religion or
language, grant of
aid to that
educational
institution cannot
be discriminated
against, if other
educational
institutions are
entitled to received
aid. The conditions
for grant or
non-grant of aid to
educational
institutions have to
be uniformly
applied, whether it
is a majority-run
institution or a
minority-run
institution. As in
the case of a
majority-run
institution, the
moment a minority
institution obtains
a grant of aid,
Article 28 of the
Constitution comes
into play. When an
educational
institution is
maintained out of
State funds, no
religious
institution can be
provided therein.
Article 28(1) does
not state that it
applies only to
educational
institutions that
are not established
or maintained by
religious or
linguistic
minorities.
Furthermore, upon
the receipt of aid,
the provisions of
Article 28(3) would
apply to all
educational
institutions whether
run by the
minorities or the
non-minorities.
Article 28(3) is the
right of a person
studying in a state
recognized
institution or in an
educational
institution
receiving aid from
state funds, not to
take part in any
religious
instruction, if
imparted by such
institution, without
his/her consent (or
his/her guardian's
consent if such a
person is a minor).
Just as Article
28(1) and (3) become
applicable the
moment any
educational
institution takes
aid, likewise,
Article 29(2) would
also be attracted
and become
applicable to an
educational
institution
maintained by the
state or receiving
aid out of state
funds. It was
strenuously
contended that the
right to give
admission is one of
the essential
ingredients of the
right to administer
conferred on the
religious or
linguistic minority,
and that this right
should not be
curtailed in any
manner. It is
difficult to accept
this contention. If
Article 23(1) and
(3) apply to a
minority institution
that receives aid
out of state funds,
there is nothing in
the language of
Article 30 that
would make the
provisions of
Article 29(2)
inapplicable. Like
Article 28(1) and
Article 28(3),
Article 29(2) refers
to "any educational
institution
maintained by the
State or receiving
aid out of State
funds". A minority
institution would
fall within the
ambit of Article
29(2) in the same
manner in which
Article 28(1) and
Article 28(3) would
be applicable to an
aided minority
institution. it is
true that one of the
rights to administer
an educational
institution is to
grant admission to
the students. As
long as an
educational
institution, whether
belonging to the
minority or the
majority community,
does not receive
aid, it would, in
our opinion, be its
right and discretion
to grant admission
to such students as
it chooses or
selects subject to
what has been
clarified before.
Out of the various
rights that the
minority institution
has in the
administration of
the institution,
Article 29(2)
curtails the right
to grant admission
to a certain extent.
By virtue of Article
29(2), no citizen
can be denied
admission by an
aided minority
institution on the
grounds only of
religion, race,
caste, language or
any of them. It is
no doubt true that
Article 29(2) does
curtail one of the
powers of the
minority
institution, but on
receiving aid, some
of the rights that
an unaided minority
institution has are
also curtailed by
Article 28(1) and
28(3). A minority
educational
institution has a
right to impart
religious
instruction - this
right is taken away
by Article 28(1), if
that minority
institution is
maintained wholly
out of state funds.
Similarly on
receiving aid out of
state funds or on
being recognized by
the state, the
absolute right of a
minority institution
requiring a student
to attend religious
instruction is
curtailed by Article
28(3). If the
curtailment of the
right to administer
a minority
institution on
receiving aid or
being wholly
maintained out of
state funds as
provided by Article
28 is valid, there
is no reason why
Article 29(2) should
not be held to be
applicable. There is
nothing in the
language of Article
28(1) and (3),
Article 29(2) and
Article 30 to
suggest that on
receiving aid,
Article 28(1) and
(3) will apply, but
Article 29(2) will
not. Therefore, the
contention that the
institutions covered
by Article 30 are
outside the
injunction of
Article 29(2) cannot
be accepted.
145.
What is the true
scope and effect of
Article 29(2)?
Article 29(2) is
capable of two
interpretations--one
interpretation,
which is put forth
by the Solicitor
General and the
other counsel for
the different
States, is that a
minority institution
receiving aid cannot
deny admission to
any citizen on the
grounds of religion,
race, caste,
language or any of
them. In other
words, the minority
institution, once it
takes any aid,
cannot make any
reservation for its
own community or
show a preference at
the time of
admission, i.e., if
the educational
institution was a
private unaided
minority
institution, it is
free to admit all
students of its own
community, but once
aid is received,
Article 29(2) makes
it obligatory on the
institution not to
deny admission to a
citizen just because
he does not belong
to the minority
community that has
established the
institution.
146.
The other
interpretation that
is put forth is that
Article 29(2) is a
protection against
discrimination on
the ground of
religion, race,
caste or language,
and does not in any
way come into play
where the minority
institution prefers
students of its
choice. To put it
differently, denying
admission, even
though seats are
available, on the
ground of the
applicant's
religion, race,
caste or language,
is prohibited, but
preferring students
of minority groups
does not violate
Article 29(2).
147.
It is relevant to
note that though
Article 29 carries
the head note
"Protection of
interests of
minorities" it does
not use the
expression
"minorities" in its
text. The original
proposal of the
Advisory Committee
in the Constituent
Assembly recommended
the following:-
""(1) Minorities in
every unit shall be
protected in respect
of their language,
script and culture
and no laws or
regulations may be
enacted that may
operate oppressively
or prejudicially in
this respect" [B.
Siva Rao, "Select
Documents" (1957)
Vol. 2 page 281]
But
after the clause was
considered by the
drafting Committee
on 1st November,
1947, it emerged
with substitute of
'section of
citizen'. [B. Siva
Rao, Select
Documents (1957)
Vol. 3, pages
525-26. Clause 23,
Draft Constitution].
It was explained
that the intention
had always been to
use 'minority' in a
wide sense, so as to
include (for
example)
Maharashtrians who
settled in Bengal.
(7 C.A.D. pages
922-23)"
148.
Both Articles 29 and
30 from a part of
the fundamental
rights Chapter in
Part III of the
Constitution.
Article 30 is
confined to
minorities, be it
religious or
linguistic, and
unlike Article
29(1), the right
available under the
said Article cannot
be availed by any
section of citizens.
The main distinction
between Article
29(1) and Article
30(1) is that in the
former, the right is
confined to
conservation of
language, script or
culture. As was
observed in the
Father W. Proost
case, the right
given by Article
29(1) is fortified
by Article 30(1),
insofar as
minorities are
concerned. In the
St. Xaviers College
case, it was held
that the right to
establish an
educational
institution is not
confined to
conservation of
language, script or
culture. When
constitutional
provisions are
interpreted, it has
to be borne in mind
that the
interpretation
should be such as to
further the object
of their
incorporation. They
cannot be read in
isolation and have
to be read
harmoniously to
provide meaning and
purpose. They cannot
be interpreted in a
manner that renders
another provision
redundant. If
necessary, a
purposive and
harmonious
interpretation
should be given.
149.
Although the right
to administer
includes within it a
right to grant
admission to
students of their
choice under Article
30(1), when such a
minority institution
is granted the
facility of
receiving
grant-in-aid,
Article 29(2) would
apply, and
necessarily,
therefore, one of
the right of
administration of
the minorities would
be eroded to some
extent. Article
30(2) is an
injunction against
the state not to
discriminate against
the minority
educational
institution and
prevent it from
receiving aid on the
ground that the
institution is under
the management of a
minority. While,
therefore, a
minority educational
institution
receiving
grant-in-aid would
not be completely
outside the
discipline of
Article 29(2) of the
Constitution by no
stretch of
imagination can the
rights guaranteed
under Article 30(1)
be annihilated. It
is this context that
some interplay
between Article
29(2) and Article
30(1) is required.
As observed quite
aptly in St.
Stephen's case "the
fact that Article
29(2) applies to
minorities as well
as non-minorities
does not mean that
it was intended to
nullify the special
right guaranteed to
minorities in
Article 30(1)." The
word "only" used in
Article 29(2) is of
considerable
significance and has
been used for some
avowed purpose.
Denying admission to
non-minorities for
the purpose of
accommodating
minority students to
a reasonable extent
will not be only on
grounds of religion
etc., but is
primarily meant to
preserve the
minority character
of the institution
and to effectuate
the guarantee under
Article 30(1). The
best possible way is
to hold that as long
as the minority
educational
institution permits
admission of
citizens belonging
to the non-minority
class to a
reasonable extent
based upon merit, it
will not be an
infraction of
Article 29(2), even
though the
institution admits
students of the
minority group of
its own choice for
whom the institution
was meant. What
would be a
reasonable extent
would depend upon
variable factors,
and it may not be
advisable to fix any
specific percentage.
The situation would
vary according to
the type of
institution and the
nature of education
that is being
imparted in the
institution.
Usually, at the
school level,
although it may be
possible to fill up
all the seats with
students of the
minority group, at
the higher level,
either in colleges
or in technical
institutions, it may
not be possible to
fill up all the
seats with the
students of the
minority group.
However, even if it
is possible to fill
up all the seats
with students of the
minority group, the
moment the
institution is
granted aid, the
institution will
have to admit
students of the
non-minority group
to a reasonable
extent, whereby the
character of the
institution is not
annihilated, and at
the same time, the
rights of the
citizen engrafted
under Article 29(2)
are not subverted.
It is for this
reason that a
variable percentage
of admission of
minority students
depending on the
type of institution
and education is
desirable, and
indeed, necessary,
to promote the
constitutional
guarantee enshrined
in both Article
29(2) and Article
30.
150.
At this stage, it
will be appropriate
to refer to the
following
observations of B.P.
Jeevan Reddy, J., in
Indra Sawhney v.
Union of India and
Ors. [1992 Supp.
(3) SCC 215] at page
657, paragraph 683,
as follows:- "Before
we proceed to deal
with the question,
we may be permitted
to make a few
observations: The
questions arising
herein are not only
of great moment and
consequence, they
are also extremely
delicate and
sensitive. They
represent complex
problems of Indian
society, wrapped and
presented to us as
constitutional and
legal questions. On
some of these
questions, the
decisions of this
Court have not been
uniform. They speak
with more than one
voice. Several
opposing points of
view have been
pressed upon us with
equal force and
passion and quite
often with great
emotion. We
recognize that these
viewpoints are held
genuinely by the
respective
exponents. Each of
them feels his own
point of view is the
only right one. We
cannot, however,
agree with all of
them. We have to
find--and we have
tried our best to
find--answers which
according to us are
the right ones
constitutionally and
legally. Though, we
are sitting in a
larger Bench, we
have kept in mind
the relevance and
significance of the
principle of stare
decisis. We are
conscious of the
fact that in law
certainty,
consistency and
continuity are
highly desirable
features. Where a
decision has stood
the test of time and
has never been
doubted, we have
respected
it--unless, of
course, there are
compelling and
strong reasons to
depart from it.
Where, however, such
uniformity is not
found, we have tried
to answer the
question on
principle keeping in
mind the scheme and
goal of our
Constitution and the
material placed
before us."
151.
The right of the
aided minority
institution to
preferably admit
students of its
community, when
Article 29(2) was
applicable, has been
clarified by this
Court over a decade
ago in the St.
Stephen's College
case. While
upholding the
procedure for
admitting students,
this Court also held
that aided minority
educational
institutions were
entitled to
preferably admit
their community
candidates so as to
maintain the
minority character
of the institution,
and that the state
may regulate the
intake in this
category with due
regard to the area
that the institution
was intended to
serve, but that this
intake should not be
more than 50% in any
case. Thus, St.
Stephen's
endeavoured to
strike a balance
between the two
Articles. Though we
accept the ratio of
St. Stephen's, which
has held the field
for over a decade,
we have compelling
reservations in
accepting the rigid
percentage
stipulated therein.
As Article 29 and
Article 30 apply not
only to institutions
of higher education
but also to schools,
a ceiling of 50%
would not be proper.
It will be more
appropriate that
depending upon the
level of the
institution, whether
it be a primary or
secondary or high
school or a college,
professional or
otherwise, and on
the population and
educational needs of
the area in which
the institution is
to be located the
state properly
balances the
interests of all by
providing for such a
percentage of
students of the
minority community
to be admitted, so
as to adequately
serve the interest
of the community for
which the
institution was
established.
152.
At the same time,
the admissions to
aided institutions,
whether awarded to
minority or
non-minority
students, cannot be
at the absolute
sweet will and
pleasure of the
management of
minority educational
institutions. As the
regulations to
promote academic
excellence and
standards do not
encroach upon the
guaranteed rights
under Article 30,
the aided minority
educational
institutions can be
required to observe
inter se merit
amongst the eligible
minority applicants
and passage of
common entrance test
by the candidates,
where there is one,
with regard to
admissions in
professional and
non-professional
colleges. If there
is no such test, a
rational method of
assessing
comparative merit
has to be evolved.
As regards the
non-minority
segment, admission
may be on the basis
of the common
entrance test and
counselling by a
state agency. In the
courses for which
such a test and
counselling are not
in vogue, admission
can be on the basis
of relevant criteria
for the
determination of
merit. It would be
open to the state
authorities to
insist on allocating
a certain percentage
of seats to those
belonging to weaker
sections of society,
from amongst the
non-minority seats.
153.
We would, however,
like to clarify one
important aspect at
this stage. The
aided linguistic
minority educational
institution is given
the right to admit
students belonging
to the linguistic
minority to a
reasonable extent
only to ensure that
its minority
character is
preserved and that
the objective of
establishing the
institution is not
defeated. If so,
such an institution
is under an
obligation to admit
the bulk of the
students fitting
into the description
of the minority
community.
Therefore, the
students of that
group residing in
the state in which
the institution is
located have to be
necessarily admitted
in a large measure
because they
constitute the
linguistic minority
group as far as that
state is concerned.
In other words, the
predominance of
linguistic students
hailing from the
state in which the
minority educational
institution is
established should
be present. The
management bodies of
such institution
cannot resort to the
device of admitting
the linguistic
students of the
adjoining state in
which they are in a
majority, under the
facade of the
protection given
under Article 30(1).
If not, the very
objective of
conferring the
preferential right
of admission by
harmoniously
constructing
Articles 30(1) and
29(2), which we have
done above, may be
distorted.
154.
We are rightly proud
of being the largest
democracy in the
world. The essential
ingredient of
democracy is the
will and the right
of the people to
elect their
representatives from
amongst a government
is formed.
155.
It will be wrong to
presume that the
government or the
legislature will act
against the
Constitution or
contrary to the
public or national
interest at all
times. Viewing every
action of the
government with
skepticism, and with
the belief that it
must be invalid
unless proved
otherwise, goes
against the
democratic form of
government. It is no
doubt true that the
Court has the power
and the function to
see that no one
including the
government acts
contrary to the law,
but the cardinal
principle of our
jurisprudence is
that it is for the
person who alleges
that the law has
been violated to
prove it to be so.
In such an event,
the action of the
government or the
authority may have
to be carefully
examined, but it is
improper to proceed
on the assumption
that, merely because
an allegation is
made, the action
impugned or taken
must be bad in law.
Such being the
position, when the
government frames
rules and
regulations or lays
down norms,
specially with
regard to eduction,
one must assume that
unless shown
otherwise, the
action taken is in
accordance with law.
Therefore, it will
not be in order to
so interpret a
Constitution, and
Article 29 and 30 in
particular, on the
presumption that the
state will normally
not act in the
interest of the
general public or in
the interest of
concerned sections
of the society.
CONCLUSION
Equality and
Secularism
156. Our country
is often
depicted as a
person in the
form of "Bharat
Mata -- Mother
India". The
people of India
are regarded as
her children
with their
welfare being in
her heart. Like
and loving
mother, the
welfare of the
family is of
paramount
importance for
her.
157. For a
healthy family,
it is important
that each member
is strong and
healthy. But
then, all
members do not
have the same
constitution,
whether physical
and/or mental.
For harmonious
and healthy
growth, it is
natural for the
parents, and the
mother in
particular, to
give more
attention and
food to the
weaker child so
as to help
him/her become
stronger. Giving
extra food and
attention and
ensuring private
tuition to help
in his/her
studies will, in
a sense, amount
to giving the
weaker child
preferential
treatment. Just
as lending
physical support
to the aged and
the infirm, or
providing a
special diet,
cannot be
regarded as
unfair or
unjust,
similarly,
conferring
certain rights
on a special
class, for good
reasons, cannot
be considered
inequitable. All
the people of
India are not
alike, and that
is why
preferential
treatment to a
special section
of the society
is not frowned
upon. Article 30
is a special
right conferred
on the religious
and linguistic
minorities
because of their
numerical
handicap and to
instill in them
a sense of
security and
confidence, even
though the
minorities
cannot be per se
regarded as
weaker sections
or
underprivileged
segments of the
society.
158. The one
billion
population of
India consists
of six main
ethnic groups
and fifty-two
major tribes;
six major
religions and
6,400 castes and
sub- castes;
eighteen major
languages and
1,600 minor
languages and
dialects. The
essence of
secularism in
India can best
be depicted if a
relief map of
India is made in
mosaic, where
the aforesaid
one billion
people are the
small pieces of
marble that go
into the making
of a map. Each
person, whatever
his/her
language, caste,
religion has
his/her
individual
identity, which
has to be
preserved, so
that when pieced
together it goes
to form a
depiction with
the different
geographical
features of
India. These
small pieces of
marble, in the
form of human
beings, which
may individually
be dissimilar to
each other, when
placed together
in a systematic
manner, produce
the beautiful
map of India.
Each piece, like
a citizen of
India, plays an
important part
in making of the
whole. The
variations of
the colours as
well as
different shades
of the same
colour in a map
is the result of
these small
pieces of
different shades
and colours of
marble, but even
when one small
piece of marble
is removed, the
whole map of
India would be
scarred, and the
beauty would be
lost.
159. Each of the
people of India
has an important
place in the
formation of the
nation. Each
piece has to
retain its own
colour. By
itself, it may
be an
insignificant
stone, but when
placed in a
proper manner,
goes into the
making of a full
picture of India
in all its
different
colours and
hues.
160. A citizen
of India stands
in a similar
position. The
Constitution
recognizes the
differences
among the people
of India, but it
gives equal
importance to
each of them,
their
differences
notwithstanding,
for only then
can there be a
unified secular
nation.
Recognizing the
need for the
preservation and
retention of
different pieces
that go into the
making of a
whole nation,
the
Constitution,
while
maintaining,
inter alia, the
basic principle
of equality,
contains
adequate
provisions that
ensure the
preservation of
these different
pieces.
161. The essence
of secularism in
India is the
recognition and
preservation of
the different
types of people,
with diverse
languages and
different
beliefs, and
placing them
together so as
to form a whole
and united
India. Articles
29 and 30 do not
more than seek
to preserve the
differences that
exist, and at
the same time,
unite the people
to form one
strong nation.
ANSWERS TO
ELEVEN
QUESTIONS:
Q.1. What is the
meaning and
content of the
expression
"minorities" in
Article 30 of
the Constitution
of India?
A. Linguistic
and religious
minorities are
covered by the
expression
"minority" under
Article 30 of
the
Constitution.
Since
reorganisation
of the State in
India has been
on linguistic
lines,
therefore, for
the purpose of
determining the
minority the
unit will be the
State and note
the whole of
India. Thus,
religious and
linguistic
minorities, who
have been put at
par in Article
30, have to be
considered
State-wise.
Q.2. What is
meant by the
expression
"religion" in
Article 30(1)?
Can the
followers of a
sect or
denomination of
a particular
religion claim
protection under
Article 30(1) on
the basis that
they constitute
a minority in
the State, even
though the
followers of
that religion
are in majority
in that State?
A. This question
need not be
answered by this
Bench; it will
be dealt with by
a regular Bench.
Q.3(a) What are
the indicia for
treating an
educational
institution as a
minority
educational
institution?
Would an
institution be
regarded as a
minority
educational
institution
because it was
established by a
person(s)
belonging to a
religious or
linguistic
minority or its
being
administered by
a person(s)
belonging to a
religious or
linguistic
minority? A.
This question
need not be
answered by this
Bench; it will
be dealt with by
a regular Bench.
Q3(b) To what
extent can
professional
education be
treated as a
matter coming
under minorities
rights under
Article 30?
A. 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.
Q.4 Whether the
admission of
students to
minority
educational
institution,
whether aided or
unaided, can be
regulated by the
State Government
or by the
University to
which the
institution is
affiliated? A.
Admission of
students to
unaided minority
educational
institutions,
viz., schools
and
undergraduates
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. Q5(a)
Whether the
minority's
rights to
establish and
administer
educational
institutions of
their choice
will include the
procedure and
method of
admission and
selection of
students?
A. A minority
institution may
have its own
procedure and
method of
admission as
well as
selection of
students, but
such a procedure
must be fair and
transparent, and
the selection of
students in
professional and
higher education
colleges should
be on the basis
of merit. The
procedure
adopted or
selection made
should not
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.
Q5(b) Whether
the minority
institutions'
right of
admission of
students and to
lay down
procedure and
method of
admission, if
any, would be
affected in any
way by the
receipt of State
aid?
A. 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. Q5(c)
Whether the
statutory
provisions which
regulate the
facets of
administration
like control
over educational
agencies,
control over
governing
bodies,
conditions of
affiliation
including
recognition/withdrawal
thereof, and
appointment of
staff,
employees,
teachers and
Principal
including their
service
conditions and
regulation of
fees, etc. would
interfere with
the right of
administration
of minorities?
A. 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 mater
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.
Q6(a) Where can
a minority
institution be
operationally
located? Where a
religious or
linguistic
minority in
State 'A"
establishes an
educational
institution in
the said State,
can such
educational
institution
grant
preferential
admission/reservations
and other
benefits to
members of the
religious/linguistic
group from other
States where
they are
non-minorities?
A. This question
need not be
answered by this
Bench; it will
be dealt with by
a regular Bench.
Q6(b) Whether it
would be correct
to say that only
the members of
that minority
residing in
State 'A' will
be treated as
the members of
the minority
vis-a-vis such
institution?
A. This question
need not be
answered by this
Bench; it will
be dealt with by
a regular Bench.
Q.7 Whether the
member of a
linguistic
non-minority in
one State can
establish a
trust/society in
another State
and claim
minority status
in that State?
A. This question
need not be
answered by this
Bench; it will
be dealt with by
a regular Bench.
Q.8 Whether the
ratio laid down
by this Court in
the St.
Stephen's case (
St. Stephen's
College v.
University of
Delhi is
correct? If no,
what order? A.
The basic ratio
laid down by
this Court in
the St.
Stephen's
College case 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.
Q.9 Whether the
decision of this
Court in
Unni Krishnan
J.P. v. State of
A.P. (except
where it holds
that primary
education is a
fundamental
right) and the
scheme framed
thereunder
required
reconsideration/modification
and if yes,
what?
A. The scheme
framed by this
Court in Unni
Krishnan's case
case and the
directio to
impose the same,
except where it
holds that
primary
education is
fundamental
right, is
unconstitutional.
However, the
principle that
the 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.
Q.10 Whether the
non-minorities
have the right
to establish and
administer
educational
institution
under Article 21
and 29(1) read
with Articles 14
and 15(1), in
the same manner
and to the same
extent as
minority
institutions?
And
Q.11 What is the
meaning of the
expressions
"Education" and
"Educational
Institutions" in
various
provisions of
the
Constitution? Is
the right to
establish and
administer
educational
institutions
guaranteed under
the
Constitution?
A. The
expression
"education" in
the Articles of
the Constitution
means and
includes
education at all
levels from the
primary school
level upto the
post-graduate
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,
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).
However,
minority
institutions
will have a
right to admit
students
belonging to the
minority group,
in the manner as
discussed in
this judgment.
___________________________________________________________________________
V.N. Khare,
J.
162. It is
interesting
to note that
Shri K.M.
Munshi, one
of the
members of
the
Constituent
Assembly
while
intervening
in the
debate in
the
Constituent
Assembly
with regard
to the kind
of religious
education to
be given in
governmental
aided
institution
stated thus:
"if the
proposed
amendment is
accepted,
the matter
has to be
taken to
Supreme
Court and
eleven
worthy
Judges have
to decide
whether the
kind of
education
given is of
a particular
religion or
in the
nature of
elementary
philosophy
of
comparative
religion.
Then, after
having
decided
that, the
second point
which the
learned
Judges will
have to
direct their
attention to
will be
whether this
elementary
philosophy
is
calculated
to broaden
the minds of
the pupils
or to narrow
their minds.
Then they
will have to
decide upon
the scope of
every word,
this being a
justiciable
right which
has to be
adjudicated
upon by
them. I have
no doubt
members of
my
profession
will be very
glad to
throw
considerable
light on
what is and
is not a
justiciable
right of
this nature
(A Member:
For a fee).
Yes, for
very good
fee too."
(See --
Constitutional
Assembly
Debates
Official
Report.
Reprinted by
Lok Sabha
Secretariat)
163. It may
be noted
that at the
time when
the
Constituent
Assembly was
framing the
Constitution
of India the
strength of
Judges of
Supreme
Court was
not
contemplated
as eleven
Judges. It
appears what
Shri Munshi
stated was
prophetic or
a mere
co-incidence.
Today eleven
Judges of
the Supreme
Court have
assembled to
decide the
question of
rights of
the
minorities.
Question No.
1. What is
the meaning
and content
of the
expression
of
"minorities
in Article
30 of the
Constitution
of India?
164. The
first
question
that is
required to
be answered
by this
Bench is who
is a
minority.
The
expression
"minority"
has been
derived from
the Latin
word "minor"
and the
suffix "ity"
which means
"small in
number".
According
tot
Encyclopaedia
Britannica
'minorities'
means
"groups held
together by
ties of
common
descent,
language or
religious
faith and
feeling
different in
these
respects
from the
majority of
the
inhabitants
of a given
political
entity". J.A.
Laponee in
his book
"The
Protection
to Minority"
describes
'Minority'
as a group
of persons
having
different
race,
language or
religion
from that of
majority of
inhabitants.
In the Year
Book on
Human Rights
U.N.
Publication
1950 ed.
minority has
been
described as
non dominant
groups
having
different
religion or
linguistic
traditions
than the
majority
population.
165. The
expression
minority has
not been
defined in
the
Constitution.
As a matter
of fact when
Constitution
was being
drafted Shri
T.T.
Krishanamachari
one of the
members of
the
Constituent
Assembly
proposed an
amendment
which runs
as under:
"That in
Part XVI of
the
Constitution,
for the word
"minorities"
where it
occurs, the
word
"certain
classes" be
substitued."
166. We find
that
expression
`minorities'
has been
employed
only at four
places in
the
Constitution
of India.
Head note of
Article 29
uses the
word
minorities.
Then again
the
expressions
Minorities
or minority
have been
employed in
head note of
Article 30
and sub
clauses (1)
and (2) of
Article
30. However,
omission to
define
minorities
in the
Constitution
does not
mean that
the
employment
of words
`minorities'
or
`minority'
in Article
30 is of
less
significance.
At this
stage it may
be noted
that the
expression
`minorities'
has been
used in
Article 30
in two
senses - one
based on
religion and
other on
basis of
language.
However
prior to
coming into
force of the
Constitution
the
expression
minority was
understood
in terms of
a class
based on
religion
having
different
electorates.
When India
attained
freedom, the
framers of
the
Constitution
threw away
the idea of
having
separate
electorates
based on
religion and
decided to
have a
system of
joint
electorates
so that
every
candidate in
an election
would have
to seek
support of
all sections
of the
constituency.
In turn
special
safeguards
were
provided to
minorities
and they
were made
part of
Chapter III
of the
Constitution
with a view
to instill a
sense of
confidence
and security
to the
minorities.
167. But the
question
arises what
is the test
to determine
minority
status based
on religion
or language
of a group
of persons
residing in
a State or
Union
Territory.
Whether
minority
status of a
given group
of persons
has to be
determined
in relation
to the
population
of the whole
of India or
population
of the State
where the
said group
of persons
is residing.
When the
Constitution
of India was
being framed
it was
decided that
India would
be Union of
States and
Constitution
to be
adopted
would be of
federal
character.
India is a
country
where many
ethnic or
religious
and multi
language
people
reside. Shri
K.M. Munshi
one of the
members of
Constituent
Assembly in
his Note and
Draft
Article on
(Right to
Religion and
Cultural
Freedom)
referred to
minorities
as national
minorities.
The said
draft
Article VI
(3) runs as
under:
"(3)
Citizens
belonging to
national
minorities
in a State
whether
based on
religion or
language
have equal
rights with
other
citizens in
forming
controlling
and
administering
at their own
expense;
charitable,
religious
and social
institutions,
schools and
other
educational
establishments
with the
free use of
their
language and
practice of
their
religions."
168. Dr. B.R.
Ambedkar
while
intervening
in debate in
regard to
amendment to
draft
Article 23
which
related to
the rights
of religious
and
linguistic
minorities
stated that
"the term
`minority'
was used
therein not
in the
technical
sense of the
word
minority as
we have been
accustomed
to use it
for purposes
of certain
political
safeguards,
such as
representation
in the
legislature,
representation
in the
services and
so on".
According to
him, the
word
minority is
used not
merely to
indicate,
the minority
in technical
sense of the
word, it is
also used to
cover
minorities
which are
not
minorities
in the
technical
sense but
which are
nonetheless
minorities
in the
cultural and
linguistic
sense. Dr.
Ambedkar
cited
following
example
which runs
as under:
"For
instance,
for the
purposes of
this Article
23, if a
certain
number of
people from
Madras came
and settled
in Bombay
for certain
purposes,
they would
be, although
not a
minority in
the
technical
sense,
cultural
minorities.
Similarly,
if a certain
number of
Maharashtrians
went from
Maharashtra
and settled
in Bengal,
although
they may not
be
minorities
in technical
true sense,
they would
be cultural
and
linguistic
minorities
in Bengal.
The Article
intends to
give
protection
in the
matter of
culture,
language and
script not
only to a
minority
technically,
but also to
a minority
in the wider
sense of the
term as I
have
explained
just now.
That is the
reason why
we dropped
the word
minority
because we
felt that
the word
might be
interpreted
in the
narrow sense
of the term
when the
intention of
this House,
when it
passed
Article 18,
was to use
the word
"minority"
in a much
wider sense,
so as to
give
cultural
protection
to those who
were
technically
not
minorities
but
minorities
nonetheless."
(See
Constitutional
Assembly
Debates
Official
Report
reprinted by
Lok Sabha
Secretariat)
169. The
draft
article and
the
Constituent
Assembly
Debates in
unambiguous
terms show
that
minority
status of a
group of
persons has
to be
determined
on the basis
of
population
of a State
or Union
Territory.
170. Further
a perusal of
Articles
350A and
350B which
were
inserted by
the
Constitution
(7th
Amendment)
Act 1956
indicates
that the
status of
linguistic
minorities
has to be
determined
as
state-wise
linguistic
minorities/groups.
Thus the
intention of
the framers
of the
Constitution
and
subsequent
amendments
in the
Constitution
indicate
that
protection
was
conferred
not only to
religious
minorities
but also to
linguistic
minorities
on basis of
their number
in a State
(unit) where
they intend
to establish
an
institution
of their
choice. It
was not
contemplated
that status
of
linguistic
minority has
to be judged
on basis of
population
of the
entire
country. If
the status
of
linguistic
minorities
has to be
determined
on basis of
the
population
of the
country, the
benefit of
Article 30
has to be
extended to
those who
are in
majority in
their own
States.
171. The
question who
are
minorities
arose for
the first
time in the
case of
Kerala
Education
Bill case
1959 SCR
P.995 at
1047-50. In
the said
decision it
was
contended by
the State of
Kerala that
in order to
constitute a
minority who
may claim
protection
of Article
30(1)
persons or
group of
persons must
numerically
be minority
in the
particular
region in
which the
educational
institution
in question
is or is
intended to
be situated.
Further
according to
State of
Kerala,
Anglo-Indians
or
Christians
or Muslims
of that
locality
taken as a
unit, will
not be a
minority
within the
meaning of
the Article
and will
not,
therefore,
be entitled
to establish
and maintain
educational
institutions
of their
choice in
that
locality,
but if some
of the
members
belonging to
the Anglo
Indian or
Christians
community
happen to
reside in
another ward
of the same
municipality
and their
number be
less than
that of the
members of
other
communities
residing
there, then
those
numbers of
Anglo-Indian
or
Christians
community
will be a
minority
within the
meaning of
Article 30
and will be
entitled to
establish
and maintain
educational
institution
of their
choice in
that
locality.
Repelling
the argument
this Court
held thus:-
"We need not
however, on
this
occasion go
further into
the matter
and enter
upon a
discussion
and express
a final
opinion as
to whether
education
being a
State
subject
being item
11 of List
II of the
Seventh
Schedule to
the
Constitution
subject only
to the
provisions
of entries
62, 63, 64
and 66 of
List land
entry 25 of
List 111,
the
existence of
a minority
community
should in
all
circumstances
and for
purposes of
all laws 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
locality
when the law
under attack
applies only
to that
locality,
for the Bill
before us
extends to
the whole of
the State of
Kerala and
consequently
the minority
must be
determined
by reference
to the
entire
population
of that
State. By
this test
Christians,
Muslims and
Anglo-Indians
will
certainly be
minorities
in the State
of Kerala."
172.
In A.M. Patroni v.
E.C. Kesavan
it was held
as this: "6.
The
contention
of the
petitioners
is that they
have an
exclusive
right to
administer
the
institution
under
Article
30 (1) of the
Constitution
and that the
order of the
Director of
Public
Instruction
constitutes
violation of
that right.
Clause (1)
of Article
30 provides
that all
minorities,
whether
based on
religion of
language,
shall have
the right to
establish
and
administer
educational
institutions
of their
choice; and
clause (2)
that 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.
The word
"minority"
is not
defined in
the
Constitution;
and in the
absence of
any special
definition
we must hold
that any
community,
religious or
linguistic,
which is
numerically
less than
fifty per
cent of the
population
of the State
is entitled
to the
fundamental
right
guaranteed
by the
article."
173. The
view that in
a state
where a
group of
persons
having
distinct
language is
numerically
less than
fifty per
cent of
population
of that
state are to
be treated
as
linguistic
minority was
accepted by
the
Government
of India and
implemented
while
determining
the minority
status of
persons or
group of
persons and
the same is
evident from
the views
expressed by
Government
of India
before the
Special
Rapporteur
of the U.N.
Sub-
Commission
on
Prevention
of
Discrimination
and
Protection
of
Minorities,
when he was
collecting
information
relating to
the study on
the concept
of Minority
and cope of
the ICCPR
1966.
174. The
Special
Rapporteur
in his
report
"Study on
the Rights
of Persons
Belonging to
Ethnic
Religious
and
Linguistic
Minorities"
published by
the Centre
for Human
Rights.
Geneva
states on
the
interpretation
of the term
"Minority"
as thus:
"For the
purposes of
the study,
an ethnic,
religious or
linguistic
minority is
a group
numerically
smaller than
the rest of
the
population
of the State
to which it
belongs and
possessing
cultural,
physical or
historical
characteristics,
a religion
or a
language
different
from those
of the rest
of the
population."
175. In the
said report,
views of the
Government
of India
which was
based on
decision of
Kerala High
Court in the
case of A.M.
Paatroni was
referred to
which runs
as under:
"(39) In
India, the
Kerala High
Court, after
observing
that the
Constitution
granted
specific
rights to
minorities,
declared
that "in the
absence of
any special
definition
we must hold
that any
community
religious or
linguistic,
which is
numerically
less than
50% of the
population
of the State
is entitled
to the
rights
guaranteed
by the
Constitution".
176. However
in the case
of D.A.V.
College v.
State of
Punjab 1971
Suppl. S.C.R.
p.688 at
697, an
argument was
raised that
minority
status of a
person or
group of
persons
either
religious or
linguistic
is to be
determined
by taking
into
consideration
the entire
population
of the
country.
While
dealing with
the said
argument
this Court
held as
follow:
"Though,
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".
177. It may
be noted
that in the
case of
D.A.V.College
(supra),
this Court
was dealing
with the
State
legislation
and in that
context
observed
that if it
is the state
legislation,
minority
status has
to be
determined
in relation
to the
population
of the
State.
However,
curiously
enough,
there is no
discussion
that if the
particular
legislation
sought to be
impugned is
a central
legislation,
minority
status has
to be tested
in relation
to the
population
of the whole
of the
country. In
the absence
of any such
discussion
it cannot be
inferred
that if
there is a
central
legislation,
the minority
status of a
group of
persons has
to be
determined
in relation
to the
entire
population
of the
country.
178. In the
year 1976 by
Fourty-Second
Amendment
Act, the
Entries 11
and 25 of
List II of
Seventh
Schedule
relating to
Education
and
Vocational
and
Technical
Training
Labour
respectively
were
transferred
to the
Concurrent
List as
Entry No.
25. In the
Constitution
of India as
enacted
Entries 11
and 25 of
List II were
as under:
Entry 11
"Education
including
Universities
subject to
the
provisions
of Entries
63, 64, 65
and 66 of
List I and
Entry 25 of
List III".
Entry 25
"Vocational
or Technical
training of
labour".
179. By the
Constitution
(42nd
Amendment)
Act, 1976
Entry 25 of
List III was
substituted
by the
following
entry viz:
Entry 25
"Education
including
technical
education,
medical
education
and
universities
subject to
the
provisions
of Entries
63, 64, 65
and 66 of
List I;
vocational
and
technical
training of
Labour".
And Entry 11
of List II
was omitted.
180. On
6.2.1997
when these
matters came
up before a
Bench of
seven Judges
of this
court, the
Bench passed
an order
which runs
as under:
"In view of
the 42nd
Amendment to
the
Constitution
placing with
effect from
3.1.1977 the
subject
"Education
in Entry 25
List III of
the 7th
Schedule to
the
Constitution
and the
quoted
decisions of
the Larger
Benches of
this Court
being of the
pre
amendment
era, the
answer to
the brooding
question, as
to who in
the context
constitutes
a minority,
has become
one of the
utmost
significance
and
therefore,
it is
appropriate
that these
matters are
placed
before a
Bench of at
least 11
Hon'ble
Judges for
determining
the
questions
involved".
181. It is
for the
aforesaid
reasons this
question has
been placed
before this
Bench.
182. In view
of the
referring
order the
question
that arises
for
consideration
is whether
the
transposition
of the
subject
Education
from List II
to List III
has brought
change to
the test
determining
who are
minorities
for the
purposes of
Article 30
of the
Constitution.
183. It may
be
remembered
that various
entries in
three lists
of the
Seventh
Schedule are
not powers
of
legislation
but field of
legislation.
These
entries are
mere
legislative
heads and
demarcate
the area
over which
the
appropriate
legislatures
are
empowered to
enact law.
The power to
legislate is
given to the
appropriate
legislature
by Article
246 and
other
articles.
Article 245
provides
that subject
to the
provisions
of the
Constitution,
Parliament
may make
laws for the
whole or any
part of the
territory of
India and
the
legislature
of a State
may make
laws for
whole or any
part of the
State. Under
Article 246
Parliament
has
exclusive
power to
make law
with respect
to any of
the matters
enumerated
in List I in
the Seventh
Schedule.
Further
under clause
(2) of
Article 246
Parliament
and subject
to clause
(1) the
legislature
of any State
are
empowered to
make law
with respect
to any of
the matters
enumerated
in List III
Seventh
Schedule and
under clause
(3) of
Article 246,
the
legislature
of any State
is empowered
to enact law
with respect
to any of
the matters
enumerated
in List II
in the
Seventh
Schedule
subject to
clauses (1)
and (2).
From the
aforesaid
provisions
it is clear
that it is
Article 246
and other
Articles
which either
empower
Parliament
or State
Legislature
to enact law
and not the
Entries
finding
place in
three Lists
of Seventh
Schedule.
Thus the
function of
entries in
three lists
of the
Seventh
Schedule is
to demarcate
the area
over which
the
appropriate
legislatures
can enact
laws but do
not confer
power either
on
Parliament
or State
Legislatures
to enact
laws. It may
be
remembered,
by transfer
of Entries,
the
character of
entries is
not lost or
destroyed.
In this view
of the
matter by
transfer of
contents of
entry 11 of
List II to
List III as
entry 25 has
not denuded
the power of
State
Legislature
to enact law
on the
subject
`Education'
but has also
conferred
power on
Parliament
to enact law
on the
subject
"Education".
Article 30
confers
fundamental
right to
linguistic
and
religious
minorities
to establish
and
administer
educational
institutions
of their
choice. The
test who are
linguistic
or religious
minorities
within the
meaning of
Article 30
would be one
and the same
either in
relation to
a State
legislation
or Central
legislation.
There cannot
be two tests
one in
relation to
Central
legislation
and other in
relation to
State
legislation.
Therefore,
the meaning
assigned to
linguistic
or religious
minorities
would not be
different
when the
subject
"Education"
has been
transferred
to the
Concurrent
List from
the State
List. The
test who are
linguistic
or religious
minorities
as settled
in Kerala
Education
Bill's case
continues to
hold good
even after
the subject
"Education"
was
transposed
into Entry
25 List III
of Seventh
Schedule by
the 42nd
Amendment
Act. If we
give
different
meaning to
the
expression
"minority"
occurring in
Article 30
in relation
to a central
legislation,
the very
purpose for
which
protection
has been
given to
minority
would
disappear.
The matter
can be
examined
from another
angle. It is
not disputed
that there
can be only
one test for
determining
minority
status of
either
linguistic
or religious
minority. It
is,
therefore,
not
permissible
to argue
that the
test to
determine
the status
of
linguistic
minority
would be
different
than the
religious
minorities.
If it is not
so, each
linguistic
State would
claim
protection
of Article
30 in its
own State in
relation to
a central
legislation
which was
not the
intention of
framers of
the
Constitution
nor the same
is borne out
from
language of
Article 30.
I am,
therefore,
of the view
that the
test for
determining
who are the
minority,
either
linguistic
or
religious,
has to be
determined
independently
of which is
the law,
Central or
State.
184. In
view of
what has
been
stated
above,
my
conclusion
on the
question
who are
minorities
either
religious
or
linguistic
within
the
meaning
of
Article
30 is as
follows:
The
person
or
persons
establishing
an
educational
institution
who
belong
to
either
religious
or
linguistic
group
who are
less
than
fifty
per cent
of total
population
of the
state in
which
educational
institutional
is
established
would be
linguistic
or
religious
minorities.
Conflict
between
ARTICLE
29(2)
AND
ARTICLE
30(1) -
whether
Article
30(1) is
subject
to
Article
29(2).
What are
the
contents
of
Article
30(1)?
185. The
issue in
hand is
full of
complexities
and an
answer
is not
simple.
Under
Article
30(1),
linguistic
or
religious
minorities'
fundamental
rights
to
establish
and
administer
educational
institution
of their
choice
have
been
protected.
Such
institutions
are of
three
categories.
First
category
of
institutions
are the
institutions
which
neither
take
government
aid nor
are
recognised
by the
State or
by the
University.
Second
category
of
institutions
are
those
which do
not take
financial
assistance
from the
government
but seek
recognition
either
from the
State or
the
University
or
bodies
recognised
by the
government
for that
purpose
and the
third
category
of
institutions
which
seek
both
government
aid as
well as
recognition
from the
State or
the
University.
186.
Here, I
am
concerned
with the
third
category
of
minority
institutions
and my
answer
to the
question
is
confined
to the
said
category
of
minority
educational
institutions.
187. It
is urged
on
behalf
of the
minority
institutions
that
Article
30(1)
confers
an
absolute
right on
linguistic
or
religious
minorities
to
establish
and
administer
educational
institutions
of their
choice.
According
to them,
the
expression
`choice'
indicates
that one
of the
purposes
of
establishing
educational
institutions
is to
give
secular
education
to the
children
of
minority
communities
and,
therefore,
such
institutions
are not
precluded
from
denying
admission
to
members
of non-
minority
communities
on
grounds
only of
religion,
race,
caste,
language
or any
of them.
In
nutshell,
the
argument
is that
Article
30(1) is
not
subject
to
Article
29(2).
Whereas,
the
argument
of
learned
Solicitor
General
and
other
learned
counsel
is that
any
minority
institution
receiving
government
aid is
bound by
the
mandate
of
Article
29(2)
and such
a
minority
institution
cannot
discriminate
between
the
minority
and
majority
while
admitting
students
in such
institutions.
According
to them,
Article
30(1)
does not
confer
an
absolute
right on
the
institutions
set up
by the
linguistic
or
religious
minorities
receiving
government
aid and
such
institutions
cannot
extend
preference
to the
members
of their
own
community
in the
matter
of
admission
of
students
in the
institutions.
188. The
question,
therefore,
arises
whether
minority
institutions
receiving
government
aid are
subject
to
provisions
of
Article
29(2).
189.
Learned
counsel
for the
parties
has
pressed
into
service
various
rules of
constructions
for
interpreting
Article
29(2)
and
Article
30(1) in
their
own way.
No
doubt,
various
rules of
construction
laid
down by
the
courts
have
been of
considerable
assistance
as they
are
based on
human
experience.
The
precedents
show
that by
taking
assistance
from
rule of
interpretations,
the
courts
have
solved
many
problems.
We,
therefore,
propose
to take
assistance
of
judicial
decisions
as well
as
settled
rules of
interpretation
while
interpreting
Articles
29(2)
and
30(1) of
the
Constitution.
190.
After
the
Constitution
of India
came
into
force,
Articles
29 and
30 came
up for
interpretation
before
various
High
Courts
and the
Apex
Court.
There
appears
to be no
unanimity
amongst
the
judicial
decisions
rendered
by the
courts
as
regards
the
extent
of right
conferred
by
Article
30(1).
One line
of
decisions
is that
minority
institutions
receiving
government
aid are
bound by
constitutional
mandate
enshrined
in
article
29(2).
The
second
line of
decisions
is that
minority
institutions
receiving
government
aid
while
admitting
students
from
their
own
communities
in the
institutions
established
by them
are free
to admit
students
from
other
communities
--
belonging
to
majority,
and such
admission
of
students
in the
institution
do not
destroy
the
minority
character
of the
institution.
The
third
line of
decisions
is that
under
Article
30(1)
fundamental
right
declared
in terms
is
absolute
although
it was
not
decided
whether
Article
30(1) is
subject
to
Article
29(2) or
not.
However,
the view
in the
said
decisions
is that
the
right
conferred
under
Article
30(1) is
an
absolute
right.
The
fourth
line of
decision
is that
there
can be
no
communal
reservation
for
admission
in Govt.
or
government
aided
institutions.
The
aforesaid
categories
of
decisions
shall
hereinafter
be
referred
to as
first,
second,
third
and
fourth
category
of
decisions.
191. The
first
decision
in first
category
of
decisions
of this
Court is
The
State of
Bombay
v.
Bombay
Education
Society
& Ors.
In
this
case, a
Society
consisting
of
members
of
Anglo-Indian
community
whose
mother
tongue
was
English
set up
an
institution
in the
then
State of
Bombay.
The
State of
Bombay
in the
year
1955
issued
an Order
that no
school
shall
admit to
class
where
English
is used
as a
medium
of
instruction
any
pupil
other
than a
pupil
belonging
to a
section
of
citizens
the
language
of which
is
English
namely,
Anglo-Indians
and
citizens
of non-
Asiatic
descent.
One of
the
members
of the
Christian
community
sought
admission
in the
school
on the
premise
that his
mother
tongue
was
English.
He was
refused
admission
in view
of the
aforesaid
Government
Order,
as the
student
was
neither
an
Anglo-Indian
whose
mother
tongue
was
English
nor a
citizen
of
non-Asiatic
descent.
This was
challenged
by means
of a
petition
under
Article
226
before
the
Bombay
High
Court
and the
Govt.
order
was
struck
down. On
appeal
to the
Apex
Court,
this
Court
held
thus:
"Article
29(1)
gives
protection
to any
section
of the
citizens
having a
distinct
language,
script
or
culture
by
guaranteeing
their
right to
conserve
the
same.
Article
30(1)
secures
to all
minorities
whether
based on
religion
or
language,
the
right to
establish
and
administer
educational
institutions
of their
choice.
Now,
suppose
the
State
maintains
an
educational
institution
to help
conserving
the
distinct
language,
script
or
culture
of a
section
of the
citizens
or makes
grants-in-aid
of an
educational
institution
established
by a
minority
community
based on
religion
or
language
to
conserve
their
distinct
language,
script
or
culture
who can
claim
the
protection
of
Article
29(2) in
the
matter
of
admission
into any
such
institution.?
Surely,
the
citizens
of the
very
section
whose
language,
script
or
culture
is
sought
to be
conserved
by the
institution
or the
citizen
who
belonged
to the
minority
group
which
has
established
and is
administering
the
institution,
do not
need any
protection
against
themselves
and
therefore,
Article
29(2) is
not
designed
for the
protection
of this
section
or this
minority.
Nor do
we see
any
reason
to limit
article
29(2) to
citizens
belonging
to a
minority
group
other
than the
section
or the
minorities
referred
to in
article
29(1) or
article
30(1),
for the
citizens,
who do
not
belong
to any
minority
group,
may
quite
conceivably
need
this
protection
just as
much as
the
citizens
of such
other
minority
groups.
If it is
urged
that the
citizens
of the
majority
group
are
amply
protected
by
article
15 and
do not
require
the
protection
of
article
29(2),
then
there
are
several
obvious
answers
to that
argument.
The
language
of
article
29(2) is
wide and
unqualified
and may
well
cover
all
citizens
whether
they
belong
to the
majority
or
minority
group.
Article
15
protects
all
citizens
against
the
State
whereas
the
protection
of
article
29(2)
extents
against
the
State or
any body
who
denies
the
right
conferred
by it.
Further
article
15
protects
all
citizens
against
discrimination
generally,
but
article
29(2) is
a
protection
against
a
particular
species
of wrong
namely
denial
of
admission
into
educational
institutions
of the
specified
kind. In
the next
place
article
15 is
quite
general
and wide
in its
terms
and
applies
to all
citizens,
whether
they
belong
to the
majority
or
minority
groups,
and
gives
protection
to all
the
citizens
against
discrimination
by the
State on
certain
specific
grounds.
Article
29(2)
confers
a
special
right on
citizens
for
admission
into
educational
institutions
maintained
or aided
by the
State.
To limit
this
right
only to
citizens
belonging
to
minority
groups
will be
to
provide
a double
protection
for such
citizens
and to
hold
that the
citizens
of the
majority
group
have no
special
educational
rights
in the
nature
of a
right to
be
admitted
into an
educational
institution
for the
maintenance
of which
they
make
contributions
by way
of
taxes.
We see
no
cogent
reason
for such
discrimination.
(emphasis
supplied)
192. In
Re
Kerala
Education
Bill,
1957 -
1959 SCR
995, it
was held
thus:
"Under
clause
(1) of
Article
29 any
section
of the
citizens
residing
in the
territory
of India
or any
part
thereof
having a
distinct
language,
script
or
culture
of its
own has
the
right to
conserve
the
same. It
is
obvious
that a
minority
community
can
effectively
conserve
its
language,
script
or
culture
by and
through
educational
institutions
and,
therefore,
the
right to
establish
and
maintain
educational
institutions
of its
choice
is a
necessary
concomitant
to the
right to
conserve
its
distinctive
language,
script
or
culture
and that
is what
is
conferred
on all
minorities
by
Article
30(1)
which
has
hereinbefore
been
quoted
in full.
This
right
however,
is
subject
to
clause 2
of
Article
29 which
provides
that no
citizen
shall be
denied
admission
into any
educational
institution
maintained
by the
State or
receiving
aid out
of State
funds on
grounds
only of
religion,
race,
caste,
language
or any
of
them."
(emphasis
supplied)
193.
After
holding
that
Article
30(1) is
subject
to
clause
(2) of
Article
29, this
Court
further
held
thus:
"There
is no
such
limitation
in
Article
30(1)
and to
accept
this
limitation
will
necessarily
involve
the
addition
of the
words
"for
their
own
community"
in the
Article
which is
ordinarily
not
permissible
according
to well
established
rules of
interpretation.
Nor is
it
reasonable
to
assume
that the
purpose
of
Article
29(2)
was to
deprive
minority
educational
institutions
of the
aid they
receive
from the
State.
To say
that an
institution
which
receives
aid on
account
of its
being a
minority
educational
institution
must not
refuse
to admit
any
member
of any
other
community
only on
the
grounds
therein
mentioned
and then
to say
that as
soon as
such
institution
admits
such an
outsider
it will
cease to
be a
minority
institution
is
tantamount
to
saying
that
minority
institutions
will
not, as
minority
institutions,
be
entitled
to any
aid. The
real
import
of
Article
29(2)
and
Article
30(1)
seems to
us to be
that
they
clearly
contemplate
a
minority
institution
with a
sprinkling
of
outsiders
admitted
into it.
By
admitting
a non-
member
into it
the
minority
institution
does not
shed its
character
and
cease to
be a
minority
institution."
(emphasis
supplied)
194. In
D.A.V.
College
etc. v.
Punjab
State &
Ors.
1971 (suppl.)
S.C.R.
p.688 it
was held
thus:
"A
reading
of these
two
Articles
together
would
lead us
to
conclude
that a
religious
or
linguistic
minority
has a
right to
establish
and
administer
educational
institutions
of its
choice
for
effectively
conserving
its
distinctive
language,
script
or
culture,
which
right
however
is
subject
to the
regulatory
power of
the
State
for
maintaining
and
facilitating
the
excellence
of its
standards.
This
right is
further
subject
to
clause
(2) of
Article
29 which
provides
that no
citizen
shall be
denied
admission
into any
educational
institution
which is
maintained
by the
State or
receives
aid out
of State
funds.
on
grounds
only of
religion,
race,
caste,
language
or any
of them.
While
this is
so these
two
articles
are not
inter-linked
nor does
it
permit
of their
being
always
read
together."
195.
In St.
Stephen's
College
v.
University
of
Delhi,
Shetty
J.
speaking
for the
majority
held
that
Article
29(2)
applies
to
minority
as well
as
non-minority
institutions.
196.
From the
decisions
referred
to
above,
the
principles
that
emerge
are
these:
(1)
Article
29(2)
confers
right on
the
citizens
for
admission
into
educational
institution
maintained
or aided
by the
State
without
discrimination.
To limit
this
right
only to
citizens
belonging
to
minority
group
will be
to
provide
double
protection
for such
citizens
and to
hold
that
citizens
of the
majority
group
have no
special
educational
rights
in the
nature
of a
right to
be
admitted
into an
educational
institution
for
maintenance
of which
they
make
contribution
by way
of
taxes.
There is
no
reason
for such
discrimination;
(2)
Article
30(1) is
subject
to
Article
29(2);
and
(3) the
real
import
of
Articles
29(2)
and
30(1) is
that
they
clearly
contemplate
minority
institutions
with the
sprinkling
of the
outsiders
admitted
into it
and by
admitting
the non-
minority
into it,
the
minority
institutions
do not
shed its
character
and
cease to
be
minority
institutions.
197. The
first
decision
in the
second
category
of cases
is in
Fev.
Father
W.
Proost &
Ors. v.
The
State of
Bihar &
Ors. It
was held
therein
that the
right of
minority
to
establish
educational
institutions
of their
choice
under
Article
30(1) is
not so
limited
as not
to admit
members
of other
communities.
Such
minority
institutions
while
admitting
members
from
their
own
community
are free
to admit
members
of
non-minority
communities.
The
expression
`choice'
includes
to admit
members
from
other
communities.
In the
State of
Kerala
etc. v.
Very
Rev.
Mother
Provincial
etc. -
1971(1)
SCR 734,
it was
held
that it
is
permissible
that a
minority
institution
while
admitting
students
from its
community
may also
admit
students
from
majority
community.
Admission
of such
non-
minority
students
would
bring
income
and the
institution
need not
be
turned
away to
enjoy
the
protection.
198. The
legal
principle
that
emerges
from the
aforesaid
decisions
is that
a
minority
institution
while
admitting
members
from its
own
community
is free
to admit
students
from
non-minority
community
also.
199. The
first
decision
in the
third
category
of cases
is Rev. Sidhajbhai
Sabhai &
Ors. v.
State of
Bombay &
Anr.. In
the said
decision.
although
the
question
as to
whether
Article
30(1) is
subject
to
Article
29(2)
was not
considered,
yet it
was held
that
under
Article
30(1)
fundamental
right
declared
in terms
absolute.
It was
also
held
that
unlike
fundamental
freedoms
guaranteed
under
Article
19 it is
not
subject
to
reasonable
restrictions.
It is
intended
to be a
real
right
for the
protection
of
minorities
in the
matter
of
setting
up of
educational
institutions
of their
own
choice.
The
right is
intended
to be
effective
and not
to be
whittled
down by
so-called
regulatory
measures
conceived
in the
interest
not of
the
minority
educational
institution,
but of
the
public
or the
nation
as a
whole.
200.
In Rt.
Rev. Magr.
Mark
Netto v.
Government
of
Kerala &
ors.,
a
question
arose
whether
Regional
Deputy
Director
of
Public
Instructions
can
refuse
permission
to a
minority
institution
to admit
girl
students.
This
Court
while
held
that
refusal
to grant
permission
was
violative
of
Article
30(1).
201. The
legal
principles
that
emerges
from the
aforesaid
category
of
decisions
are
these:
(1) that
article
30(1) is
absolute
in terms
and the
said
right
cannot
be
whittled
by down
regulatory
measures
conceived
in the
interest
not of
minority
institutions
but of
public
or the
nation
as a
whole;
and (2)
the
power of
refusal
to admit
a girl
student
in a
boy's
minority
institution
is
violative
of
Article
30(1).
202. The
fourth
category
of cases
is the
decision
in the
State of
Madras
v.
Srimathi
Champakam
Dorairajan
etc.
1951 SCR
525
wherein
it was
held
thus:
"This
Court in
the
context
of
communal
reservation
of seats
in
medical
colleges
run by
the
government
was of
the view
that the
intention
of the
Constitution
was not
to
introduce
communal
consideration
in
matters
of
admission
into any
educational
institution
maintained
by the
State or
receiving
aid out
of State
funds.
However,
it may
be noted
that
this
case was
in
relation
to an
institution
referred
to in
Article
30(1)
but has
been
cited
for the
purpose
that
there
cannot
be
communal
reservation
in the
educational
institution
receiving
aid out
of State
funds."
(emphasis
supplied)
203.
From the
aforesaid
four
categories
of
decisions,
it
appears
that
there is
not a
single
decision
of this
Court
where it
has been
held
that
Article
30(1) is
not
subject
to
Article
29(2).
On the
contrary
there
are bulk
of
decisions
of this
Court
holding
that
minority
institution
cannot
refuse
admission
of
members
of
non-minority
community
and
Article
30(1) is
subject
to
Article
29(2).
If I go
by
precedent,
it must
be held
that
Article
30(1) is
subject
to
Article
29(2).
However,
learned
counsel
for
minority
institutions
strongly
relied
upon the
decision
in the
case of
Rev.
Sidhajbai
(supra)
and
argued
that
once
Article
30(1) is
fundamental
right
declared
absolute
in
terms,
it
cannot
be
subjected
to
Article
29(2).
Since
this
Bench is
of
eleven
Judges
and
decisions
of this
Court
holding
that
Article
30(1) is
subject
to
Article
29(2)
are by
lesser
number
of
Judges I
shall
examine
the
question
independently.
204. One
of the
known
methods
to
interpret
a
provision
of an
enactment
of the
Constitution
is to
look
into the
historical
facts or
any
document
preceding
the
legislation.
205.
Earlier,
to
interpret
a
provision
of the
enactment
or the
Constitution
on the
basis of
historical
facts or
any
document
preceding
the
legislation
was very
much
frowned
upon,
but by
passage
of time,
such
injunction
has been
relaxed.
206. In
His
Holiness
Kesavananda
Bharati
Sripadagalvaru
etc. v.
State of
Kerala &
Anr.
Etc. ,
it was
held
that the
Constituent
Assembly
debates
although
not
conclusive,
yet the
intention
of
framers
of the
Constitution
in
enacting
provisions
of the
Constitution
can
throw
light in
ascertaining
the
intention
behind
such
provision.
207.
In R.S.
Nayak v.
A.R.
Antulay
, it was
held
thus:
"Reports
of the
Committee
which
preceded
the
enactment
of a
legislation,
reports
of Joint
Parliament
Committee,
report
of a
commission
set up
for
collecting
information
leading
to the
enactment
are
permissible
external
aids to
construction.
If the
basic
purpose
underlying
construction
of
legislation
is to
ascertain
the real
intention
of the
Parliament,
why
should
the aids
which
Parliament
availed
of such
as
report
of a
Special
Committee
preceding
the
enactment,
existing
state of
Law, the
environment
necessitating
enactment
of
legislation,
and the
object
sought
to be
achieved,
be
denied
to Court
whose
function
is
primarily
to give
effect
to the
real
intention
of the
Parliament
in
enacting
the
legislation.
Such
denial
would
deprive
the
Court of
a
substantial
and
illuminating
aid to
construction.
The
modern
approach
has to a
considerable
extent
eroded
the
exclusionary
rule
even in
England."
208.
Thus,
the
accepted
view
appears
to be
that the
report
of the
Constituent
Assembly
debates
can
legitimately
be taken
into
consideration
for
construction
of the
provisions
of the
Act or
the
Constitution.
In that
view of
the
matter,
it is
necessary
to look
into the
Constituent
Assembly
debates
which
led to
enacting
Articles
29 and
30 of
the
Constitution.
209. The
genesis
of the
provisions
of
Articles
29 and
30 needs
to be
looked
into in
their
two
historical
stages
to focus
them in
their
true
perspective.
The
first
stage
relates
to
pre-partition
deliberations
in the
Committees
and
Constituent
Assembly
and the
second
stage
after
the
partition
of the
country.
On 27th
of
February,
1947,
several
Committees
were
formed
for the
purpose
of
drafting
Constitution
of India
and on
the same
day, the
Advisory
Committee
appointed
a
Sub-Committee
on
minorities
with a
view to
submit
its
report
with
regard
to the
rights
of the
minorities.
Before
the
Fundamental
Rights
Sub-Committee,
Shri K.M.
Munshi -
one of
its
members
wanted
certain
rights
for
minorities
being
incorporated
in the
fundamental
rights.
He was
advised
by the
Fundamental
Rights
Committee
that the
said
report
regarding
rights
of
minorities
may be
placed
before
the
Minority
Sub-
Committee.
On April
16,
1947,
Shri K.M.
Munshi
circulated
a letter
to the
members
of the
Sub-Committee
on
minorities
recommending
that
certain
fundamental
rights
of
minorities
be
incorporated
in the
Constitution.
The
recommendations
contained
in the
said
letter
run as
under:
"1. All
citizens
are
entitled
to the
use of
their
mother
tongue
and the
script
thereof
and to
adopt,
study or
use any
other
language
and
script
of his
choice.
2.
Citizens
belonging
to
national
minorities
in a
State
whether
based on
religion
or
language
have
equal
rights
with
other
citizens
in
forming,
controlling
and
administering
at their
own
expense,
charitable,
religious
and
social
institutions,
schools
and
other
educational
establishment
with the
free use
of their
language
and
practice
of their
religion.
(emphasis
supplied)
3.
Religious
instruction
shall
not be
compulsory
for a
member
of a
community
which
does not
profess
such
religion.
4. It
shall be
the duty
of every
unit to
provide
in the
public
educational
system
in towns
and
districts
in which
a
considerable
proportion
of
citizens
of other
than the
language
of the
unit are
residents,
adequate
facilities
for
ensuring
that in
the
primary
schools
the
instruction
shall be
given to
the
children
of such
citizens
through
the
medium
of their
own
language.
Nothing
in this
clause
shall be
deemed
to
prevent
the unit
from
making
the
teaching
of the
national
language
in the
variant
and
script
of the
choice
of the
pupil
obligatory
in the
schools.
5. No
legislation
providing
state
aid for
schools
shall
discriminate
against
schools
under
the
management
of
minorities
whether
based on
religion
or
language.
6. (a)
Notwithstanding
any
custom
or usage
or
prescription,
all
Hindus
without
any
distinction
of caste
or
denomination
shall
have the
right of
access
to and
worship
in all
public
Hindu
temples,
choultries,
dharmasalas,
bathing
ghats,
and
other
religious
places.
(b)
Rules of
personal
purity
and
conducted
prescribed
for
admission
to and
worship
in these
religious
places
shall in
no way
discriminate
against
or
impose
any
disability
on any
person
on the
ground
that he
belongs
to
impure
or
inferior
caste or
menial
class.
210. One
of the
reasons
for
recommendation
of the
aforesaid
rights
was the
Polish
Treaty
forming
part of
Poland's
Constitution
which
was a
reaction
to an
attempt
in
Europe
and
elsewhere
to
prevent
minorities
from
using or
studying
their
own
language.
The
aforesaid
recommendations
were
then
placed
before
the
Minority
Sub-Committee.
The
Minority
Sub-Committee
submitted
its
report
amongst
other
subjects
on
cultural,
educational
and
fundamental
rights
of
minorities
which
may be
incorporated
at the
appropriate
places
in the
Constitution
of
India.
The
recommendations
of the
said
Sub-Committee
were
these:
(i) All
citizens
are
entitled
to use
their
mother
tongue
and the
scrip
thereof,
and to
adopt,
study or
use any
other
language
and
script
of their
choice;
(ii)
Minorities
in every
unit
shall be
adequately
protected
in
respect
of their
language
and
culture,
and no
government
may
enact
any laws
or
regulations
that may
act
oppressively
or
prejudicially
in this
respect;
(iii) No
minority
whether
of
religion,
community
or
language
shall be
deprived
of its
rights
or
discriminated
against
in
regard
to the
admission
into
State
educational
institutions,
nor
shall
any
religious
instruction
be
compulsorily
imposed
on them;
(iv) All
minorities
whether
of
religion,
community
or
language
shall be
free in
any unit
to
establish
and
administer
educational
institutions
of their
choice
and they
shall be
entitled
to State
aid in
the same
manner
and
measure
as is
given to
similar
State-aided
institutions;
(v)
Notwithstanding
any
custom,
law,
decree
or
usage,
presumption
or terms
of
dedication,
no Hindu
on
grounds
of
caste,
birth or
denomination
shall be
precluded
from
entering
in
educational
institutions
dedicated
or
intended
for the
use of
the
Hindu
community
or any
section
thereof;
(vi) No
disqualification
shall
arise on
account
of sex
in
respect
of
public
serve or
professions
or
admission
to
educational
institutions
save and
except
that
this
shall
not
prevent
the
establishment
of
separate
educational
institutions
for boys
and
girls."
211.
Initially,
Shri G.B.
Pant was
of the
view
that
these
minority
rights
should
be made
to form
part of
unjusticiable
Directive
Principles,
but on
intervention
of Shri
K.M.
Munshi
those
minority
rights
were
included
in the
fundamental
rights
chapter.
On 22nd
April,
1947,
the
report
of
Minority
Sub-Committee
was
placed
before
the
Advisory
Committee.
The
Advisory
Committee,
inter
alia,
recommended
that
Clause
16 which
corresponds
to
Article
28 of
the
Constitution
should
be
re-drafted
as
follows:
"All
persons
are
equally
entitled
to
freedom
of
conscience
and the
right
freely
to
profess,
practise
and
propagate
religion
subject
order,
morality
or
health,
and to
the
other
provisions
of this
chapter."
212. The
Advisory
Committee
then
considered
the
recommendations
of the
Sub-
Committee
and it
was
resolved
to
insert
the
following
clauses
among
the
justiciable
fundamental
rights:
"(1)
Minorities
in every
unit
shall be
protected
in
respect
of their
language
script
and
culture,
and no
laws or
regulations
may be
enacted
that may
operate
oppressively
or
prejudicially
in this
respect;
(2) No
minority
whether
based on
religion,
community
or
language
shall be
discriminated
against
in
regard
to the
admission
into
State
educational
institutions,
nor
shall
any
religious
instruction
be
compulsorily
imposed
on them;
(3)(a)
All
minorities
whether
based on
religion,
community
or
language
shall be
free in
any unit
to
establish
and
administer
educational
institutions
of then
choice;
(b) The
State
shall
not
while
providing
State
aid to
schools
discriminate
against
schools
under
the
management
of
minorities
whether
based on
religion,
community
or
language."
This
became
Clause
18.
213.
The
recommendations
of
the
Advisory
Committee
were
then
placed
before
the
Constituent
Assembly
which
met
on
1st
May,
1947.
When
Clause
18
was
moved
by
Shri
Sardar
Vallabhabhai
Patel
for
adoption
by
the
House,
several
members
were
of
the
view
that
Clause
18
may
be
referred
back
to
the
Advisory
Committee
for
reconsideration
in
the
light
of
discussion
that
took
place
on
that
day.
However,
Shri
K.M.
Munshi--another
member
of
the
Constituent
Assembly
suggested
that
only
Sub-clause
(2)
of
Clause
18
be
referred
back
to
the
Advisory
Committee
for
reconsideration.
Ultimately,
the
amendment
moved
by
Shri
K.M.
Munshi
was
adopted
and
Sub-clause
(2)
of
Clause
18
was
referred
back
to
the
Advisory
Committee
for
reconsideration.
Thereafter
Clause
18(1)
and
Clause
18(3)
were
accepted
without
any
amendment.
214.
The
Advisory
Committee
re-considered
Clause
18(2)
and
recommended
that
Clause
18(2)
be
retained
after
deleting
the
words
"nor
shall
any
religious
instruction
be
compulsorily
imposed
on
them"
as
the
said
provision
was
already
covered
by
Clause
16.
Thus,
Sub-clause
(2)
was
placed
before
the
House
on
30th
August,
1947
for
being
adopted
along
with
the
recommendation
of
the
Advisory
Committee.
When
the
matter
was
taken
up
Mrs.
Purnima
Banerji
proposed
the
following
amendments
that
after
the
word
'State'
the
words
'and
State-aided'
be
inserted.
While
proposing
the
said
amendment,
Mrs.
Banerji
stated
thus:
"The
purpose
of
the
amendment
is
that
no
minority,
whether
based
on
community
or
religion
shall
be
discriminated
against
in
regard
to
the
admission
into
State-aided
and
State
educational
institutions.
Many
of
the
provinces,
e.g.
U.P.,
have
passed
resolutions
laying
down
that
no
educational
institution
will
forbid
the
entry
of
any
members
of
any
community
merely
on
the
ground
that
they
happened
to
belong
to a
particular
community--even
if
that
institution
is
maintained
by a
donor
who
has
specified
that
that
institution
should
only
cater
for
members
of
his
particular
community.
If
that
institution
seeks
State
aid,
it
must
allow
members
of
other
communities
to
enter
into
it.
In
the
olden
days,
in
the
Anglo-Indian
schools
(it
was
laid
down
that
though
those
schools
would
be
given
to
Indians.
In
the
latest
report
adopted
by
this
House
it
is
laid
down
at
40
per
cent.
I
suggest
Sir,
that
if
this
clause
is
included
without
the
amendment
in
the
Fundamental
Rights,
it
will
be a
step
backward
and
many
provinces
who
have
taken
a
step
forward
will
have
to
retrace
their
steps.
We
have
many
institutions
conducted
by
very
philanthropic
people,
who
have
left
large
sums
of
money
at
their
disposal.
While
we
welcome
such
donations,
when
a
principle
has
been
laid
down
that,
if
any
institution
receives
State
aid,
it
cannot
discriminate
or
refuse
admission
to
members
of
other
communities,
then
it
should
be
follow.
We
know,
Sir,
that
many
a
Province
has
got
provincial
feelings.
If
this
provision
is
included
as a
fundamental
right,
I
suggest
it
will
be
highly
detrimental.
The
Honourable
Mover
has
not
told
us
what
was
the
reason
why
he
specifically
excluded
State-aided
institutions
from
this
clause.
If
he
had
explained
it,
probably
the
House
would
have
been
convinced.
I
hop
that
all
the
educationist
and
other
members
of
this
House
will
support
my
amendment."
(emphasis
supplied)
215.
The
amendment
proposed
by
Mrs.
Banerji
was
supported
by
Pandit
Hirday
Nath
Kunzra
and
other
members.
However,
on
intervention
of
Shri
Vallabhbhai
Patel,
the
following
Clause
18(2)
as
proposed
by
the
Advisory
Committee
was
adopted:
"18(2).
No
minority
whether
based
on
religion,
community
or
language
shall
be
discriminated
against
in
regard
to
the
admission
into
state
educational
institutions."
216.
After
Clause
18(2)
was
adopted
by
the
Constituent
Assembly,
the
same
was
referred
to
the
Constitution
Drafting
Committee
of
which
Dr.
B.R.
Ambedkar
was
the
Chairman.
The
Drafting
Committee
while
drafting
Clause
18
deleted
the
word
'minority'
from
Clause
18(1)
and
the
same
was
substituted
by
the
words
'any
section
of
the
citizens".
However,
rest
of
the
clause
as
adopted
by
the
Constituent
Assembly
was
retained.
Clause
18(1),
(2)
and
(3)
(a)
&
(b)
were
transposed
in
Article
23
of
the
Draft
Constitution
of
India.
Article
23
of
the
Draft
Constitution
of
India
runs
as
under:
Cultural
and
Educational
Rights
"23.
(1)
Any
section
of
the
citizens
residing
in
the
territory
of
India
or
any
part
thereof
having
a
distinct
language,
script
and
culture
of
its
own
shall
have
the
right
to
conserve
the
same.
(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)
(a)
All
minorities
whether
based
on
religion,
community
or
language
shall
have
the
right
to
establish
and
administer
educational
institutions
of
their
choice.
(b)
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
community
or
language."
217.
On
8.12.1948,
the
aforesaid
draft
Article
23
was
placed
before
the
Constituent
Assembly.
When
draft
Article
23
was
taken
up
for
debate,
Shri
M.
Ananthasayanam
Ayyangar
stated
that
for
the
words
"no
minority"
occurring
in
Clause
2 of
draft
Article
23,
the
words
"no
citizen
or
minority"
be
substituted.
He
stated
thus:
"I
want
that
all
citizens
should
have
the
right
to
enter
any
public
educational
institution.
This
ought
not
to
be
confined
to
minorities.
That
is
the
object
with
which
I
have
moved
this
amendment."
218.
It
is
at
that
stage,
Shri
Thakur
Dass
Bhargava
moved
amendment
No.
26
to
amendment
No.
687.
According
to
him,
for
amendment
No.
687
of
the
List
of
amendment,
the
following
be
substituted:
"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."
219.
He
further
stated
thus:
"Sir,
I
find
there
are
three
points
of
difference
between
this
amendment
and
the
provisions
of
the
section
which
it
seeks
to
amend.
The
first
is
to
put
in
the
words
'no
citizen'
for
the
words
'no
minority'.
Secondly
that
not
only
the
institutions
which
are
maintained
by
the
State
will
be
included
in
it,
but
also
such
institutions
as
are
receiving
aid
out
of
state
funds.
Thirdly,
we
have,
instead
of
the
words
"religion,
community
of
language",
the
words,
"religion,
race,
caste,
language
or
any
of
them."
Now,
Sir,
it
so
happens
that
the
words
"no
minority"
seek
to
differentiate
the
minority
from
the
majority,
whereas
you
would
be
pleased
to
see
that
in
the
Chapter
the
words
of
the
heading
are
"cultural
and
educational
rights",
so
that
the
minority
rights
as
such
should
not
find
any
place
under
this
Section.
Now
if
we
read
Clause
(2)
it
would
appear
as
if
the
minority
had
been
given
certain
definite
rights
in
this
clause,
whereas
the
national
interest
requires
that
no
majority
also
should
be
discriminated
again
in
this
matter.
Unfortunately,
there
is
in
some
matters
a
tendency
that
the
minorities
as
such
posses
and
are
given
certain
special
rights
which
are
denied
to
the
majority.
It
was
the
habit
of
our
English
masters
that
they
wanted
to
create
discriminations
of
this
sort
between
the
minority
and
the
majority.
Sometimes
the
minority
said
they
were
discriminated
against
and
on
the
other
occasions
the
majority
felt
the
same
thing.
The
amendment
brings
the
majority
and
the
minority
on
an
equal
status.
In
educational
matters,
I
cannot
understand,
from
the
national
point
of
view,
how
any
discrimination
can
be
justified
in
favour
of a
minority
or a
majority.
Therefore,
what
this
amendment
seeks
to
do
is
that
the
majority
and
the
minority
are
brought
on
the
same
level.
There
will
be
no
discrimination
between
any
member
of
the
minority
or
majority
in
so
far
as
admission
to
educational
institutions
are
concerned.
So I
should
say
that
this
is a
charter
of
the
liberties
for
the
student-world
of
the
minority
and
the
majority
communities
equally.
Now,
Sir,
the
word
"community"
is
sought
to
be
removed
from
this
provision
because
"community"
has
no
meaning.
If
it
is a
fact
that
the
existence
of a
community
is
determined
by
some
common
characteristic
and
all
communities
are
covered
by
the
words
religion
or
language,
then
"community"
as
such
has
no
basis.
So
the
word
"community"
is
meaningless
and
the
words
substituted
are
"race
or
caste".
So
this
provision
is
so
broadened
that
on
the
score
of
caste,
race,
language
or
religion
no
discrimination
can
be
allowed.
My
submission
is
that
considering
the
matter
from
all
the
standpoints,
this
amendment
is
one
which
should
be
accepted
unanimously
by
this
House."
220.
After
Dr.
B.R.
Ambedkar
gave
clarification
as
to
why
the
words
"no
minority"
were
deleted
and
its
place
"no
section
of
the
citizen"
were
substituted
in
Clause
(1)
of
Draft
Article
23.
Amendment
as
proposed
by
Shri
Thakur
Dass
Bhargava
was
put
to
motion
and
the
same
was
adopted.
Thus
the
word
'minority'
was
deleted
and
the
same
was
substituted
by
the
word
'citizen'
and
for
the
words
"religion,
community
or
language",
the
words
"religion,
race,
caste,
language
or
any
of
them
were
substituted.
Thus,
Article
23
was
split
into
two
Articles-Article
23
containing
Clause
(1)
and
Clause
(2)
of
Article
23
and
Sub-clause
(a)
and
(b)
of
Clause
(3)
of
Article
23
was
numbered
as
Article
23-A.
Subsequently
Articles
23
and
23-A
became
Articles
29
and
30
respectively.
Thus,
Article
23,
as
amended,
became
part
of
the
Constitution
on
9th
December,
1948.
221.
The
deliberations
of
the
Constituent
Assembly
show
that
initially
Shri
K.M.
Munshi
recommended
that
citizens
belonging
to
national
minority
in
the
State
whether
based
on
religion
or
language
have
equal
rights
with
other
citizens
in
setting
up
and
administering
at
their
own
expense
charitable,
religious
and
social
institutions,
schools
and
other
educational
establishments
with
the
free
use
of
their
language
and
practice
of
their
religion
for
being
incorporated
in
the
proposed
Constitution
of
India.
This
was
with
a
view
that
the
members
of
the
majority
community
who
are
more
in
number
may
not
at
any
point
of
time
take
away
the
rights
of
minorities
to
establish
and
administer
educational
institution
of
their
choice.
It
was
very
much
clear
that
there
was
a
clear
intention
that
the
rights
given
to
minorities
under
Article
30(1)
were
to
be
exercised
by
them
if
the
institution
established
is
administered
at
their
own
cost
and
expense.
It
is
for
that
reason
we
find
that
no
educational
institution
either
minority
or
majority
has
any
common
law
right
or
fundamental
right
to
receive
financial
assistance
from
the
government.
Non-discriminatory
Clause
(2)
of
Article
30
only
provides
that
the
State
while
giving
grant-in-aid
to
the
educational
institutions
shall
not
discriminate
against
any
educational
institution
on
the
ground
that
it
is
under
the
management
of a
minority,
whether
based
on
religion
or
language.
The
subsequent
deliberations
of
the
Constituent
Assembly
further
shows
that
there
was
thinking
in
the
minds
of
the
framers
of
the
Constitution
that
equality
and
secularism
be
given
paramount
importance
while
enacting
Article
30(1).
It
is
evident
that
amendment
proposed
by
Shri
Thakur
Dass
Bhargava
which
is
now
Article
29(2)
was
a
conscious
decision
taken
with
due
deliberations.
The
Constituent
Assembly
was
of
the
view
that
originally
Clause
(2)
of
draft
Article
23
sought
to
distinguish
the
minority
from
majority,
whereas
in
the
chapter
the
words
are
'cultural
and
educational
rights'
and
as
such
the
words
'minority'
ought
not
to
have
found
place
in
that
Article.
The
reason
for
omission
of
words
in
Clause
(2)
of
draft
Article
23
was
that
minorities
were
earlier
given
certain
rights
under
that
clause
where
national
interest
required
that
no
member
of
majority
also
should
be
discriminated
against
in
educational
matters.
It
also
shows
that
by
the
aforesaid
amendment
discrimination
between
minority
and
majority
was
done
away
with
and
the
amendment
has
brought
the
minority
and
majority
in
equal
footing.
The
debate
also
shows
what
was
originally
proposed
either
in
Clause
18(2)
or
Article
23(2).
The
debate
further
shows
that
the
post
partition
stage
members
of
the
Constituent
Assembly
intended
to
broaden
the
scope
of
Clause
(2)
of
draft
Article
23
and
never
wanted
to
confine
the
rights
only
to
the
minorities.
The
views
of
the
members
of
the
Constituent
Assembly
were
that
if
any
institution
takes
aid
from
the
government
for
establishing
and
administering
educational
institutions
it
cannot
discriminate
while
admitting
students
on
the
ground
of
religion,
race
and
caste.
It
may
be
seen
that
by
accepting
the
amendment
proposed
by
Shri
Thakur
Dass
Bhargava
the
scope
of
Article
29(2)
was
broadened
inasmuch
as
the
interest
of
minority
-
either
religious
or
linguistic
was
secured
and,
therefore,
the
intention
of
the
framers
of
the
Constitution
for
enacting
Clause
(2)
of
Article
29(2)
was
that
once
a
minority
institution
takes
government
aid,
it
becomes
subject
to
Clause
(2)
of
Article
29.
222.
It
was
then
urged
that
if
the
intention
of
the
framers
of
the
Constitution
was
to
make
Article
30(1)
subject
to
Article
29(2),
the
appropriate
place
where
it
should
have
found
place
was
Article
30(1)
itself
rather
than
in
Article
29
and,
therefore,
Article
29(2)
cannot
be
treated
as
an
exception
to
Article
30(1).
There
is
no
merit
in
the
contention.
It
is
earlier
noticed
that
Clause
(18)
when
was
placed
before
the
Constituent
Assembly
contained
the
provisions
of
Article
29(1)(2)
and
30(1)(2)
and
all
were
numbered
as
Clause
18(1)
(2)
(3)(a)
(b).
Again
when
Clause
(18)
was
transposed
in
draft
Article
23,
Article
29(1)(2)
and
Article
30(1)(2)--both
were
together
in
draft
Article
23.
Shri
Thakur
Dass
Bhargava's
amendment
which
was
accepted
was
in
relation
to
Clause
(2)
of
Article
23
which
ultimately
has
become
Article
29(2).
It
is
for
that
reason
Article
29(2)
finds
place
in
Article
29.
223.
It
was
also
urged
that
if
the
framers
of
the
Constitution
intended
to
carve
out
a
exception
to
Article
30(1),
they
could
have
used
the
words
"subject
to
the
provisions
contained
in
Article
29(2)"
in
the
beginning
of
Article
30(1)
or
could
have
used
the
expression
"notwithstanding"
in
the
beginning
of
Article
29(2)
and
in
absence
of
such
words
it
cannot
be
held
that
Article
29(2)
is
an
exception
to
Article
30(1).
Reference
in
this
regard
was
made
to
Articles
25
and
26
which
contained
qualifying
words.
In
fact,
the
structural
argument
was
based
on
the
absence
of
qualifying
words
either
in
Article
29(2)
or
30(1).
This
argument
based
on
structure
of
Articles
29(2)
and
30(1)
has
no
merit.
In
fact,
it
overlooks
that
the
intention
of
the
framers
of
the
Constitution
was
to
confer
rights
consistent
with
the
other
members
of
society
and
to
promote
rather
than
imperil
national
interest.
it
may
be
noted
that
there
is a
difference
in
the
language
of
Articles
25
and
26.
The
qualifying
words
of
Article
25
are
"subject
to
public
order,
morality
and
health
and
to
the
other
provisions
of
this
part".
The
opening
words
of
Article
26
are
"subject
to
public
order,
morality
and
health".
The
absence
of
words
"to
the
other
provisions
of
this
part"
as
occurring
in
Article
25
in
Article
26
does
not
mean
that
Article
26
is
over
and
above
other
rights
conferred
in
Part-III
of
the
Constitution.
In
The
Durgah
Committee,
Ajmer
and
Anr.
v.
Syed
Hussain
Ali
and
Ors.
-and
Tilkayat
Shri
Govindlalji
Maharaj
v.
The
State
of
Rajasthan
and
Ors.
-,
it
has
been
held
that
Article
26
is
subject
to
Article
25
irrespective
of
the
fact
that
the
words
"subject
to
other
provisions
of
this
part"
occurring
in
Article
25
is
absent
in
Article
26.
For
these
reasons,
it
must
be
held
that
even
if
there
are
no
qualifying
expression
"subject
to
other
provisions
of
this
part"
and
"notwithstanding
anything"
either
in
Article
30(1)
or
Article
29(2),
Article
30(1)
is
subject
to
Article
29(2)
of
the
Constitution.
224.
There
is
another
factor
which
shows
that
Article
30(1)
is
subject
to
Article
29(2).
If
Article
29(2)
is
meant
for
the
benefit
of
minority,
there
was
no
sense
in
using
the
word
'caste'
in
Article
29(2).
The
word
'caste'
is
unheard
of
in
religious
minority
communities
and,
therefore,
Article
29(2)
was
never
intended
by
the
framers
of
the
Constitution
to
confer
any
exclusive
rights
to
the
minorities.
225.
Although
Article
30(1)
strictly
may
not
be
subject
to
reasonable
restrictions,
it
cannot
be
disputed
that
Article
30(1)
is
subject
to
Article
28(3)
and
also
general
laws
and
the
laws
made
in
the
interests
of
national
security,
public
order,
morality
and
the
like
governing
such
institutions
will
have
to
be
necessarily
read
into
Article
30(1).
In
that
view
of
the
matter
the
decision
by
this
Court
in
Rev.
Sidhajbhai
(supra)
that
under
Article
30(1)
fundamental
right
conferred
on
minorities
is
in
terms
absolute
is
not
borne
out
of
that
Article.
It,
therefore,
cannot
be
held
that
the
fundamental
right
guaranteed
under
Article
30(1)
is
absolute
in
terms.
Thus,
looking
into
the
precedents,
historical
fact
and
Constituent
Assembly
debates
and
also
interpreting
Articles
29(2)
and
30(1)
contextually
and
textually,
the
irrestible
conclusion
is
that
Article
30(1)
is
subject
to
Article
29(2)
of
the
Constitution.
226.
The
question
then
arises
for
what
purpose
the
celebrated
Article
30(1)
has
been
incorporated
in
the
Constitution
if
the
linguistic
or
religious
minorities
who
establish
educational
institutions
cannot
admit
their
own
students
or
are
precluded
from
admitting
members
of
their
own
communities
in
their
own
institution.
It
is
urged
that
the
rights
under
Article
30(1)
conferred
on
the
minorities
was
in
return
to
minorities
for
giving
up
demand
for
separate
electorate
system
in
the
country.
It
is
also
urged
that
an
assurance
was
given
to
the
minorities
that
they
would
have
a
fundamental
right
to
establish
and
administer
educational
institution
of
their
choice
and
in
case
the
minority
cannot
admit
their
own
students
or
members
of
their
own
community
it
would
be
breach
of
the
assurance
given
to
the
minorities.
There
is
no
denial
of
the
fact
that
in a
democracy
the
rights
and
interest
of
minorities
have
to
be
protected.
In
the
year
1919,
President
Wilson
stated
that
nothing
is
more
likely
to
disturb
the
peace
of
the
world
than
the
treatment
which
might
in
certain
circumstances
be
meted
out
to
minorities.
Lord
Acton
emphasized
that
the
most
certain
test
by
which
we
judge
whether
a
country
is
really
free
is
the
amount
of
security
enjoyed
by
minorities.
It
is
also
not
disputed
that
in
the
field
of
international
law
in
respect
of
minorities
it
is
an
accepted
view
that
the
minorities
on
account
of
their
non
dominance
are
in a
vulnerable
position
in
the
society
and
in
addition
to
the
guarantee
of
non-discrimination
available
to
all
the
citizens,
require
special
and
preferential
treatment
in
their
own
institutions.
The
Sub-Committee
in
its
report
to
the
Commission
on
Human
Rights
reported
thus:
"Protection
of
minorities
is
the
protection
of
non-dominant
groups,
which,
while
wishing
in
general
for
equality
of
treatment
with
the
minority,
wish
for
a
measure
of
differential
treatment
in
order
to
preserve
basic
characteristics
which
they
possess
and
which
distinguish
them
from
the
majority
of
the
population.
The
protection
applied
equally
to
individuals
belonging
to
such
groups
and
wishing
the
same
protection.
It
follows
that
differential
treatment
of
such
groups
or
of
individuals
belonging
to
such
groups
is
justified
when
it
is
exercised
in
the
interest
of
their
contentment
and
the
welfare
of
the
community
as a
whole."
(cited
in
St.
Xavier's
College)
227.
The
aforesaid
report
was
accepted
by
the
Permanent
Court
of
International
Justice
in a
case
relating
to
minority
school
in
Albania
which
arose
out
of
the
fact
that
Albania
signed
a
Declaration
relating
to
the
position
of
minorities
in
the
State.
Article
4 of
the
Declaration
provided
that
all
Albanian
nationals
shall
be
equal
before
the
law
and
shall
enjoy
the
same
civil
and
political
rights
without
distinction
as
the
race,
language
or
religion.
Article
5
further
provided
that
all
Albanian
nationals
who
belong
to
racial,
religious
or
linguistic
minorities
will
enjoy
the
same
treatment
and
security
in
law
and
in
fact
as
other
Albanian
nationals.
In
particular
they
shall
have
an
equal
right
to
maintain,
manage
and
control
at
their
own
expense
or
to
establish
in
the
future
charitable,
religious
and
social
institutions,
schools
and
other
educational
establishments
with
the
right
to
use
their
own
language
and
to
exercise
their
religion
freely
therein.
Subsequently,
the
Albanian
Constitution
was
amended
and
a
provision
was
made
for
compulsory
primary
education
for
the
Albanian
nationals
in
State
schools
and
all
private
schools
were
to
be
closed.
The
question
arose
before
the
Permanent
Court
of
International
Justice
as
to
whether
Albanian
Government
was
right
to
abolish
the
private
schools
run
by
the
Albanian
minorities.
The
Court
was
of
the
view
that
the
object
of
Declaration
was
to
ensure
that
nationals
belonging
to
the
racial,
religious
or
linguistic
minorities
shall
be
placed
in
every
respect
on a
footing
of
perfect
equality
with
other
nationals
of
the
State.
The
second
was
to
ensure
for
the
minority
elements
suitable
means
for
the
preservation
of
their
racial
peculiarities,
their
traditions
and
their
national
characteristics.
These
two
requirements
were
indeed
closely
interlocked,
for
there
would
be
no
true
equality
between
a
majority
and
a
minority
if
the
latter
were
deprived
of
its
own
institutions
and
were
consequently
compelled
to
renounce
that
which
constitutes
the
very
essence
of
its
being
a
minority.
The
Court
was
of
the
further
view
that
"there
must
be
equality
in
fact
as
well
as
ostensible
legal
equality
in
the
sense
of
the
absence
of
discrimination
in
the
words
of
the
law.
Equality
in
law
precludes
discrimination
of
any
kind;
whereas
equality
in
fact
may
involve
the
necessity
of
different
treatment
in
order
to
attain
a
result
which
establishes
an
equilibrium
between
different
situations."
(St.
Xavier
Colleges
case
(per
Khanna,
Mathew,
JJ.)
228.
Article
27
of
the
International
Covenant
on
Civil
and
Political
Rights
1966
(CCPR)
guarantee
minority
rights
in
the
following
terms:
"In
those
States
in
which
ethnic,
religious
or
linguistic
minorities
exist
persons
belonging
to
such
minorities
shall
not
be
denied
the
right,
in
community
with
the
other
members
of
their
group,
to
enjoy
their
own
culture
to
profess
and
practice
their
own
religions
or
to
use
their
own
language."
229.
Prof.
Francesco
Capotorti
in
his
celebrated
study
on
the
Rights
of
Persons
Belonging
to
Ethnic,
Religious
or
Linguistic
Minorities
stated
as
follows:
"Article
27
of
the
Covenant
must,
therefore,
be
placed
in
its
proper
context.
To
enable
the
objectives
of
this
article
to
be
achieved,
it
is
essential
that
States
should
adopt
legislative
and
administrative
measures.
It
is
hard
to
imagine
how
the
culture
and
language
of a
group
can
be
conserved
without,
for
example,
a
special
adaptation
of
the
educational
system
of
the
country.
The
right
accorded
to
members
of
minorities
would
quite
obviously
be
purely
theoretical
unless
adequate
cultural
institutions
were
established.
This
applies
equally
in
the
linguistic
field,
and
even
where
the
religion
of a
minority
is
concerned
a
purely
passive
attitude
on
the
part
of
the
State
would
not
answer
the
purposes
of
Article
27.
However,
whatever
the
country,
groups
with
sufficient
resources
to
carry
out
tasks
of
this
magnitude
are
rare,
if
not
non-existent.
Only
the
effective
exercise
of
the
rights
set
forth
in
Article
27
can
guarantee
observance
of
the
principle
of
the
real,
and
not
only
formal,
equality
of
persons
belonging
to
minority
groups.
The
implementation
of
these
rights
calls
for
active
and
sustained
intervention
by
States.
A
passive
attitude
on
the
part
of
the
latter
would
render
such
rights
inoperative."
230. The Human Rights Committee functioning under the Optional Protocol of ICCPR in its General Comment adopted by the Committee on 06th April, 1994 stated thus:
"The Committee points out that Article 27 establishes and recognizes a right, which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant."
231. From the aforesaid report it is clear that in certain circumstances rights conferred to minority groups are distinct from and additional to, all the other rights which as an individuals are entitled to enjoy under the covenant. The political thinkers have recognised the importance of minority rights as well as for ensuring such rights. According to them the rights conferred on linguistic or religious minorities are not in the nature of privilege or concession, but heir entitlement flows from the doctrine of equality, which is the real de facto equality. Equality in law precludes discrimination of any kind, whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes equilibrium between different situations. Where there is a plurality in a society, the object of law should be not to split the minority group which makes up the society, but to find out political social and legal means of preventing them from falling apart and so destroying the society of which they are members. The attempt should be made to assimilate the minorities with majority. It is a matter of common knowledge that in some of the democratic countries where minority rights were not protected, those democracies acquired status of theocratic States.
232. In India, the framers of the Constitution of India with a view to instill a sense of confidence and security in the mind of minority have conferred rights to them under the Constitution. One of such rights is embodied in Article 30 of the Constitution. Under Article 30 the minorities either linguistic or religious have right to establish and administer educational institutions of their choice. However, under the Constitution every citizen is equal before law, either he may belong to minority group or minority community. But right conferred on minority under Article 30(1) would serve no purpose when they cannot admit students of their own community in their own institutions. In order to make Article 30(1) workable and meaningful, such rights must be interpreted in the manner in which they serve the minorities as well as the mandate contained in Article 29(2). Thus, where minorities are found to have established and administering their own educational institutions, the doctrine of the real de facto equality has to be applied. The doctrine of the real de facto equality envisages giving a preferential treatment to members of minorities in the matter of admission in their own institutions. On application of doctrine of the real de facto equality in such a situation not only Article 30(1) would be workable and meaningful, but it would also serve the mandate contained in Article 29(2). Thus, while maintaining the rule of non- discrimination envisaged by Article 29(2), the minorities should have also right to give preference to the students of their own community in the matter of admission in their own institution. Otherwise, there would be no meaningful purpose of Article 30(1) in the Constitution. True, receipt of State aid makes it obligatory for educational institution to keep the institution open to non-minority students without discrimination on the specified grounds. But, to hold that the receipt of State aid completely disentitles the management of minority educational institutions from admitting students of their community to any extent will be to denude the essence of Article 30 of the Constitution. It is, therefore, necessary that minority be given preferential rights to admit students of their own community in their own institutions in a reasonable measure otherwise there would be no meaningful purpose of Article 30 in the Constitution.
233. Article 337 of the Constitution provides that grants or government aid has to be given to the Anglo-Indian Institution provided they admit 40% of members from other community. Taking the clue from Article 337 and spirit behind Article 30(1) it appears appropriate that minority educational institutions be given preferential rights in the matter of admission of children of their community in their own institutions while admitting students of non-minorities which, advisedly, may be upto 50% based on inter se merits of such students. However, it would be subject to assessment of the actual requirement of the minorities the types of the institutions and the course of education for which admission is being sought for and other relevant factors.
234. Before concluding the matter, it is necessary to deal with few more aspects which relate to the regulatory measures taken by the government with regard to government aided minority institution. In that connection, the State must see that regulatory measures of control of such institutions should be minimum and there should not be interference in the internal or day-to-day working of the management. However, the State would be justified in enforcing the standard of education in such institutions. In case of minority professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. It is for the reason that the products of such professional institutions are not only going to serve the minorities but also to majority community. So far as the redressal of grievances of staff and teachers of minority institutions are concerned, a mechanism has to be evolved. Past experience shows that setting up a Tribunal for particular class of employees is neither expedient nor conducive to the interest of such employee. In that view of the matter each District Judge which includes the Addl. District Judge of the respective district be designated as Tribunal for redressal of the grievances of the employee and staff of such institutions.
235. Another question that arises in this connection as to on what grounds the staff and teachers, if aggrieved, can challenge the arbitrary decisions of the management. One of the learned senior counsel suggested that such decisions be tested on the grounds available under the labour laws. However, seeing the nature of the minority institutions the grounds available under labour laws are too wide and it would be appropriate if adverse decisions of the Management are tested on grounds of breach of principles of natural justice and fair play or any regulation made in that respect.
236. Subject to what have been stated above, I concur with the judgment of Hon'ble the Chief Justice.
___________________________________________________________________________
Syed Shah Mohammed Quadri, J.
237. I have perused the majority judgment prepared by Hon'ble the Chief Justice, the concurring opinion of my learned brother, Khare, J. and the dissenting opinions given by our learned sister Ruma Pal, J. and learned brother S.N. Variava, J.
238. Though the questions referred to and re-framed are eleven, the Bench deemed it fit not to answer four of them. On the contentions advanced by the learned counsel who argued these cases in regard to the remaining seven questions, the learned Chief Justice has formulated the following five issues which encompass the entire field:
1. IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTIONS AND IF SO, UNDER WHICH PROVISION?
2. DOES UNNIKRISHNAN'S CASE REQUIRE RE-CONSIDERATION?
3. IN CASE OF PRIVATE INSTITUTIONS (UNAIDED AND AIDED), CAN THERE BE GOVERNMENT REGULATIONS AND, IF SO, TO WHAT EXTENT?
4. IN ORDER, TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR LINGUISTIC MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT, THE STATE OR THE COUNTRY AS A WHOLE?
5. TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY INSTITUTIONS TO ADMINISTER BE REGULATED?
239. Before I advert to these issues, it would be appropriate to record that there was unanimity among the learned counsel appearing for the parties, institutions, States and the learned Solicitor General appearing for the Union of India on two aspects; the first is that all the citizens have the right to establish educational institutions under Article 19(1)(g) and Article 26 of the Constitution and the second is that the judgment of the Constitution Bench of this Court in Unnikrishnan J.P. and Ors., v. State of Andhra Pradesh and Ors. requires re- consideration, though there was some debate with regard to the aspects which require re-consideration.
1. IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTIONS AND IF SO, UNDER WHICH PROVISION?
240. On this issue I respectfully agree with the view expressed by Hon'ble the Chief Justice speaking for the majority.
241. Part III of the Constitution which embodies fundamental rights does not specify such a right vis-a-vis all citizens as such. However, we shall refer to Articles 19, 26 and 30 having a bearing on this issue.
242. Article 19 of the Constitution, insofar as it is relevant for the present discussion, is as under:
"19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right -
(a) to (f) xxx xxx xxx
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) to (5) xxx xxx xxx
(6) Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to,--
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."
243. Article 19 confers on all citizens rights specified in Sub-clauses (a) to (g). The fundamental rights enshrined in Sub-clause (g) of Clause (1) of Article 19 of the Constitution are to practise any profession, or to carry on any occupation, trade or business. We are concerned here with the right to establish educational institution to impart education at different levels, primary, secondary, higher, technical, professional, etc. Education is essentially a charitable object and imparting education is, in my view, a kind of service to the community, therefore, it cannot be brought under 'trade or business' nor can it fall under 'profession'. Nevertheless, having regard to the width of the meaning of the terms 'occupation' elucidated in the judgment of Hon'ble the Chief Justice, the service which a citizen desires to render by establishing educational institutions can be read in 'occupation'. This right, like other rights enumerated in Sub- clause (g), is controlled by Clause (6) of Article 19. The mandate of Clause (6) is that nothing is Sub-clause (g) shall affect the operation of any existing law, insofar it imposes or prevent the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of right conferred by the said sub-clause and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to or prevent the State from making nay law relating to: (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; or (ii) the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Therefore, it may be concluded that the right of a citizen to run educational institutions can be read into "occupation" falling in Sub-clause (g) of Clause (1) of Article 19 which would be subject to the discipline of Clause (6) thereof.
244. Every religious denomination or a section thereof is conferred the right, inter alia, to establish and maintain institution for religious and charitable purpose, incorporated in Clause (a) of Article 26, which reads thus:
"26. Freedom to manage religious affairs - 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;
(b) to (d) xxx xxx xxx"
245. The right under Clause (a) is a group right and is available to every religious denomination or any section thereof, be it of majority or any section thereof. It is evident from the opening words of Article 26 that this right is subject to public order, morality and health.
246. The Constitution protects the cultural and educational rights of such minorities as are specified in Articles 29 and 30.
247. Article 29 deals with the protection of interests of minorities. If affords protection to minorities who have a distinct language, script or culture of their own and declares that they shall have the right to conserve the same provided they form a section of citizens residing in the territory of India. Sub-clause (1) of Section 29 is in the following terms: "29. Protection of interests of minorities - (1) 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."
248. We shall advert to Clause (2) of Article 29 separately;
249. Article 30 of the Constitution confers a special right on the minorities to establish and administer educational institutions. For the purposes of this Article, religious or linguistic minorities alone are recognised for conferring rights under Article 30. Article 30 reads as under:
"30. Right of minorities to establish and administer educational institutions - (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) 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."
250. Clause (1) of Article 30 provides that all minorities, whether based on religion on language, shall have the right (i) to establish and (ii) administer educational institutions of their choice. The amplitude of the right is couched in very wide language. It is also a group right but any individual belonging to minorities, linguistic or religious, may exercise this right for the benefit of his own group. It is significant to note that the right conferred under Article 30 is not subjected to any limitations. The Article speaks of "their choice". The right to establish and administer educational institutions is of the choice of the minorities. The expression "institutions of their choice" means institutions for the benefit of the minorities; the word 'choice' encompasses both of the students as well as of the type of education to be imparted in such educational institutions.
251. It has been settled by a catena of decisions of this Court [In Re The Kerala Education Bill, 1957 [1959 SCR 995], Rev. Sidhajbhai Sabhjai and Ors. v. State of Bombay and Anr., The Ahmedabad St. Xavier's College Society and Anr. Etc. v. State of Gujarat and Anr. and St. Stephen's College v. University of Delhi that Article 30 of the Constitution conferred special rights on the minorities (linguistic or religious). The word 'minority' is not defined in the Constitution but literally it means 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of two members, sections or group called 'majority'. In that sense, there may be political minority, religious minority, linguistic minority, etc.
252. The other clauses of this Article will be discussed separately.
253. With these few comments, I am in respectful agreement with the majority judgment on issue No. 1.
2. DOES UNNIKRISHNAN'S CASE REQUIRE RE-CONSIDERATION?
3. IN CASE OF PRIVATE INSTITUTION (UNAIDED AND AIDED) CAN THERE BE GOVERNMENT REGULATIONS AND, IS SO, TO WHAT EXTENT?
4. IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR LINGUISTIC MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT, THE STATE OR THE COUNTRY AS A WHOLE?
On these issues, I respectfully agree with the reasoning and conclusion of the majority.
5. TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY INSTITUTIONS TO ADMINISTER BE REGULATED?
254. In regard to this issue and particularly on the interpretation of Article 29(2) vis-a-vis, clauses (1) and (2) of Article 30 and the conclusion recorded by the majority, I have some reservations. I could not persuade myself to agree with the majority judgment as well as the opinions of my learned brethren Khare, J. and more so with the dissenting opinion of Variava, J. with which Ashok Bhan, J. agreed. On this aspect, I agree with the reasoning and conclusion of our learned sister Ruma Pal, J. I would give my reasons for this conclusion later.
255. In the result I am in respectful agreement with the answer recorded in the majority judgment on question Nos. 1, 2, 3(a), 3(b) and 4 except to the extent of reasoning and interpretation of Articles 29(2) and 30(1) on which the answer is based. I agree, with respect, with answers to questions 3(a), 5(c), 6(a), 6(b) and 7. In regard to question No. 8, reconsideration of the judgment of the Constitution Bench of this Court in St. Stephen's College (supra) which relates to aided minority institutions, I agree with the answer recorded in the majority judgment, except to the extent of interplay between Article 29(2) and 30(1) and giving to the authorities power to prescribe a percentage having regard to the type of institution and educational needs of minorities. I agree also with the answer to question No. 9.
256. With regard to answer to question No. 5(b) and the common answer to question Nos. 10 and 11, in the light of the comments made above, I would answer that all the citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26. The minorities have an additional right to establish and administer educational institution 'of their choice' under Article 30(1). The extent of these rights are, therefore, different. A comparison of Articles 18, 26 and 30 would show that whereas the educational institutions established and run by the citizens under Article 19(1)(g) and Article 26(a) are subject to the discipline of Articles 19(6) and 26 there are no such limitations in Article 30 of the Constitution, so in that the right conferred thereunder is absolute. However, the educational institutions established by the minorities under Article 30(1) will be subject only to the regulatory measures which should be consistent with Article 30(1) will be subject only to the regulatory measures which should be consistents with Article 30(1) of the Constitution. My answer to question 5(b) is that the right of the minority institutions to admit students of the minority, in any, would not be affected in any way by receipt of State and, I intend to dilate on this aspect of the matter in my separate reasoned opinion later. It is sufficient to state at this stage that subject to this., I agree with the common answer to question Nos. 10 and 11.
___________________________________________________________________________
Ruma Pal, J.
257. I have had the privilege of reading the opinion of Hon'ble the Chief Justice. Although I am in broad agreement with most of the 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 29(2) is applicable to Article 30(1). I consequently differ with the conclusions as stated in answer to Questions 4, 5(b) and 11 to the extent mentioned in this opinion.
258. Re: Question 1
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 : (1) protection to whom? (2) against whom? and (3) against what? The word minority means "numerically less". The question then is numerically less in relation to the country or the State or some other political or geographical boundary?
259. 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 determined with reference to the country as a whole.
260. In Re: Kerala Education Bill, 1957 1959 SCR 995, p.1047, the contention of the State of Kerala was that in order to constitute a minority for the purposes of Articles 29(1) and 30(1), persons must be numerically in the minority in the particular area or locality in which educational institution is or is intended to be constituted. The argument was negatived as being held inherently fallacious (p.1049) and also contrary to the language of Article 350A. However, the Court expressly refrained from finally opining as to whether 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 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 "minority must be determined by reference to the entire population of that State." (p.1050)
261. In the subsequent decision in DAV College v. State of Punjab (I) 1971 SCR (Supp) 688, 697, 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 and it was clearly said: "Though 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."
262. In D.A.V. College v. State of Punjab (II), 1971 SCR (Supp) 677, 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.
263. 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. On 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.
264. Apart from this incongruity, such an interpretation would be contrary to Article 29(1) 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 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 circumstances that states have been created along linguistic lines after the framing of the Constitution.
265. 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.
266. Re: Question 8
Whether the ratio laid down by this Court in the St. Stephen's case (St. Stephen's College v. University of Delhi is correct ? If no, what order?
267. In St. Stephen's College, 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 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 no be quarrel with the decision of the court on the second issue. However, as far as the first principle is concerned, in my view the decision is erroneous and does not correctly state the law.
268. 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 education institution, maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."
269. 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 the 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 education 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 apparent 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 redundant Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. 1958 SCR 895, 918; Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha; 1959 Suppl 1 SCR 806,; on an interpretation of the provisions in the context of the objects which were sought to be achieved by the framers of the Constitution; and, finally on a consideration of how this Court has construed these provisions in the past.
270. 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 been 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'.
271. 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 the powers under Article 368 of the Constitution Keshvananda Bharti v. State of Kerala. 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 order 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 language and more importantly, religion, which would be contrary to the 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 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 life". 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.
272. Article 30 and Secularism
The word 'secular' is commonly understood in contradiction 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 a 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. 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.
273. 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.
274. The First Amendment to the American Constitution is as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
275. 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.164.
276. The Australian Constitution has adopted the First Amendment in Section 116 which is based on that Amendment. It reads: "The Commonwealth shall not make any laws for establishing any religion, or for imposing any religious 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."Kidangazhi Manakkal Narayanan Nambudiripad v. State of Madras.
277. Under the Indian Constitution there is no such "wall of separation" between the State and religious institutions. Article 16(5) recognises the validity of laws relating to management of religious and denominational institutions. Article 28(2) contemplates the State itself managing educational institutions wherein religious instructions are to be imparted. And among the subjects over which both the Union and the States have legislative competence as set out in List No. III of the Seventh Schedule to the Constitution Entry No. 28 are:
"Charitable and charitable institutions, charitable and religious endowments and religious institutions".
278. 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 III 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 classes and sections of Hindus.
279. As a result the courts have upheld laws which may regulate or restrict matters associated with religious practices if such practice does not form an integral part of the particular religion Ramanuja v. State of Tamil Nadu Quareshi v. State of Bihar 1959 SCR 629.
280. Freedom of religious groups or collective religious rights are provided 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.
(b) To manage and acquire movable and immovable property; and (c) To own and acquire movable and immovable property; and (d) To administer such property in accordance with law.
281. The phrase "matters of religion" has been strictly construed so that matters not falling strictly within that phrase may be subject to 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 any 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 of the Constitution and its approach to 'Secularism', the observation in St. Stephens noted earlier is clearly not in keeping with 'Secularism' as provided under the Indian 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.
282. The ostensible separation of religion and the State in the field of the 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 terms prevent the State from making payment out of the proceeds of taxes generally collected towards the promotion or maintenance 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 terms. " 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 Consolidated Fund of the State of Tamil Nadu every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st 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 (330 IUS 1) where it was held that the State could not reimburse transportation charges of children attending a Roman Catholic School.
283. Article 28 in fact 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 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 out of State funds.
284. 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. Implicit in this prohibition is that acknowledgement that the State can recognize and aid an educational institution giving religious instruction or conducting religious worship. In the United States, on the other hand it has been held that State maintained institutions cannot give religious instruction even if such instruction is not compulsory. (See. Tiiinois v. Board of Education 1947 (82) Law Ed. 649).
285. In the ultimate analysis the Indian Constitution does not unlike the United States, subscribe to the people of non- interference of the State in religious organisations buy it remains secular in that it strives to respect all religions equally, the equality being understood in its substantive sense as is discussed in the subsequent paragraphs.
286. 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 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 terms 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 circumentanced cannot be treated on par. The Constitution has itself provided 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 122, 212 and other Articles giving immunity from the ordinary process of the law to persons holding certain offices. Again Articles 371 to 371(H) contain special provisions for particular States.
287. The principles of non-discrimination which form another fact of equality are provided for under the Constitution under Articles 15(1), 16(1) and 29(2). The first two articles are qualified by major exceptions under Articles 15(3) and (4), 16 (3), (4), (4A) and Article 335 by which the Constitution has empowered the Executive to enact legislation or otherwise specially provide for certain classes of citizens. The fundamental principle of equality is not compromised by these provisions as they are made on a consideration that the person so 'favoured' are unequals to begin with whether socially, economically or politically. Furthermore, the use of the word 'any person' in Article 14 in the context of legislation in general or executive action affecting group rights is construed to mean persons who are similarly situated. The classification of such persons for the purposes of testing the differential treatment must, of course, be intelligible and reasonable the reasonableness being determined with reference to the object for which the action is taken. This is the law which has been settled by this Court in a series of decisions, the principle having been enunciated as early as in 1950 in Chiranjit Lal Chowdhury v. Union of India and Ors. 1950 SCR 869.
288. The equality, therefore, under Article 14 is not indiscriminate. Paradoxical
as it may seem, the concept of equality permits rational or discriminating discrimination. Conferment of special benefits or protection or rights to a particular 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.
289. 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 not so subject as opposed to constitutional amendments. See Keshavananda Bharati v. State of Kerala AIR 1973 1461
290. On a plain reading of the provisions of the Article, all minorities based on religion 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 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 matters of setting up and 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" In re Kerala Education Bill, 1957 1959 SCR 995, 1070, "am absolute right" Rev. Sidhajbhai Sabhai v. State of Bombay, "a special right" Rev Father W. Proost and Ors. v. State of Bihar 1969 (2) SCR 173, 192, "a guaranteed right" State of Kerala v. Very Rev. Mother Provincial 1971 (1) SCR 734, 740, "the conscience of the nation" St. Xaviers College v. Gujarat, "a befitting pledge" ibid 223, " a special right" ibid 224 and an "article of faith" Lily Kurain v. Lewi.
291. 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.
292. Before considering the earlier decision on this, a semantic analysis of the word used in Article 30(1) of indicates that the right to admit students is an intrinsic part of Article 30(1).
293. First -- Article 30(1) speaks of the 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.
294. 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.
295. Third, - the benefit which has been guaranteed under Article 30 is a protection of 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 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 is in the actual education of the members of the community.
296. Finally, - the words 'of their choice' is not qualified by any words of limitation and would include the right to admit students of the minority's choice. Since the primary purpose of Article 30(1) is to give the benefit to the members of the minority community in question that 'choice' cannot be exercised in a manner that deprives that community of the benefit. Therefore, 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.
297. The interpretation is also in keeping with what this Court has consistently held. In state of Bombay v. Bombay Education Society, the Court said:
"..... 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 of their contents."
298. In 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 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 desire that education should be imparted to the children of their community in an atmosphere congenial to the growth of their culture. Our Constitution makers recognised the validity of their claim and to allay their fears conferred on them the fundamental rights referred to above."
299. 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 choice for the purpose of giving their children the best general education to make them complete men and women of the country."
300. In St. Stephen's College, the Court recognised that: "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 betterment of those who resort to it."
301. 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 of their own community people. Indeed they cannot. It was pointed out in Re, Kerala Educational 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 article as conferring the right on the minorities to establish educational institution for their own benefit...." (P. 607)
302. This conclusion, in my respectful view, is based on a misreading of the decision of this Court in Kerala Educational 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 establish 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."
303. 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 the an infringement of that guarantee.
304. 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 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 of managing' and is not limited to the people managing the institution.Concise Oxford Dictionary (10th Edition) 864. In the context of Article 30(1) and having regard to the content of the right, namely, the education of the minority community, the word 'management' in Article 30(2) must be construed to mean the 'process and not the 'persons' in management 'Aid' by definition means to give support or to held 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. Sidhabhai Sabhai, supra 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). When 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.
305. 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).
306. Articles 29(2) and 30(1)
Article 29(2) 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, case, language or any of them".
307. 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 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.
308. 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 (1) 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 citizens are discriminated against on one of the bases prohibited under Article 16(1). Nevertheless such legislation would be valid because the reservation is not only on the basis of caste/race but because of the additional factor of their backwardness. Clauses (3) and (4) of Article 15 like Clause 3, 4 and 4(A) of Article 16 merely make explicit what is otherwise implicit in the concept of equality under Article 14.
309. By the same token, Article 29(2) does not create an absolute right for citizens to be admitted into any educational institution maintained by the State or receiving aid out of State funds. It does not prohibit the denial of admission on grounds other than religion, race, caste or language. Therefore, reservation of admissions on the grounds of residence, occupation of parents or other bases has been held to be a valid classification which does not derogate from the principles of equality under Article 14. [See: Kumari Chitra Ghosh v. Union of India : D.N. Chanchala v. State of Mysore: 1971 SCR (Supp.) 608. Even in respect of the "prohibited" bases, like the other non-discriminatory Articles, Article 29(2) is constitutionally subject to the principle of 'rational classification'. If a person is denied admission on the basis of a constitutional right, that is not a denial only on the basis of religion, race etc. This is exemplified in Article 15(4) which provides for: "Nothing in this article or in Clause (2) of Article 29 shall prevent the 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."
310. 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 the 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.
311. 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 such grant makes available at least 40% of the annual admission for members of communities other than the Anglo-Indian community. Hence 60% of the admission 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.
312. Similarly, the Constitution has also carved out a further exception to Article 29(2) in the form of Article 30(1) by recognising the rights of special classes in the form of minorities based on language or religion to establish and administer educational institutions of their choice. The right of the minorities under Article 30(1) does not operate as discrimination against other citizens only on the ground of religion or language. The reason for such classification is not only religion or language per se but minorities based on religion and language. Although, it is not necessary to justify a classification made by the Constitution, this fact of 'minorityship' is the obvious rationale for making a distinction, the underlying assumption being that minorities by their very numbers are in a politically disadvantaged situation and require special protection at least in the field of education.
313. Articles 15(4), 337 and 30 are therefore facets of substantive equality by making special provision for special classes on special considerations.
314. Even on general principles of interpretation, it cannot be held that Article 29(2) is absolute and in effect wipes out Article 30(1). Article 29(2) refers to ' any educational institution' -- the word "any" signifying the generality of its application. Article 30(1) on the other hand refers to 'educational institutions established and administered by minorities'. Clearly, the right under Article 30(1) is the more particular right and on the principle of ' generalia speciaiibus non derogent, it must be held that Article 29(2) does not override he educational institutions even if they are aided under Article 30(1) Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha: 1959 Suppl. 1 SCR 806, 860, 1939 FCR 18.
315. 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 no general principles of interpretation, the heading is at least a pointer or aid in construing the 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." Bhinka v. Charan Singh. Therefore, if two interpretations of the words of Article 29(2) are possible, the one which is in keeping with the heading of the Article must be preferred. It would follow that Article 29(2) must be construed in a manner protective of minority interests and not destructive of them.
316. 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 the 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 Article 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 terms apply to linguistic minority educational institutions at all. Furthermore, the right to set up an educational institution in which religious instruction is to be imparted is a right which is derived from Article 26(a) which provides that every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes, and not under Article 30(1). Educational institutions set up under Article 26(a) are, therefore, subject to Clauses (1) and (3) of Article 28. Article 30(1) is a right additional to Article 26(a). This follows from the fact that it has been separately and expressly provided for and there is nothing in the language of Article 30(1) making the right thereunder subject to Articles 25 and 26. Unless it is so construed Article 30(1) would be rendered redundant St. Xaviers College, paras 7 to 12. 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(1) and 28(3) is, I would think, erroneous.
317. 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. 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. Sri Venkataramane Dev Aru v. State of Mysore, 1958 SCR 895, 918. 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).
318. A simple illustration would make the position clear. 'Aid' is given to 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).
319. 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 equality or secularism.
320. 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".Cardozo: Nature of Judicial Process, p.17. Of particular significance 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 that reports of the various Committees appointed by the Constituent Assembly and speeches made in the Constituent Assembly and the record of other 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.
321. The proponents of the argument that Article 29(2) over-rides Article 30(1) have referred to excerpts from the speeches made by members of Constituent Assembly which have been quoted in support of their view. Apart from the doubtfulness as to the admissibility of the speeches, K.P. Verghese v. Income Tax Officer: Sanjeev Coke v. Bharat Coking Coal Ltd. and PV Narasimha Rao, in my opinion, there is nothing in the speeches which shows an intention on the part of the Constituent Assembly to abridge in any way the special protection afforded to minorities under Article 30(1). The intention indicated in the 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 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.
322. 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 provisions to safeguard their interests. This has been adequately done by Sikri, C.J. in Keshavanand Bharati v. State of Kerala, on the basis of which the learned 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.
323. I need only add that the rights of linguistic minorities assumed special significance and support when, much after independence, the imposition of a 'unifying language' led not to unity but to an assertion of differences. States were formed on linguistic bases showing the apparent paradox that allowing for and protecting differences leads to unity and integrity and enforced assimilation may lead to disaffection and unrest. The recognition of the principle of "unity in diversity" has continued to be the hall mark of the Constitution -- a concept which has been further strengthened by affording further support to the protection of minorities on linguistic bases in 1956 by way of Articles 350A and 350B and in 1978 by introducing Clause (1-A) in Article 30 requiring "the State, that is to say, Parliament in the case of a Central legislation or a State legislature in the case of State legislation, in making a specific law to provide for the compulsory acquisition of the property 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 will in any manner impair the functioning of the educational institution". Society of St. Joseph's College v. Union of India. 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.
324. The earlier decisions of this Court show that the issue of admission to 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 and 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 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 Kerala 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 a minority institution.p.1052. 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 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".
325. The 'liberal, generous and sympathetic approach' of this Court towards 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.
326. The decision of this Court in Champakam Dorairajan v. State of Madras, 1951 SCR 525 cannot be construed as an authority for the proposition that Article 29(2) overrides the constitutional right guaranteed to the minorities under Article 30(1), as Article 30(1) was not at all mentioned in the entire course of the judgment. Similarly, the Court in State of Bombay v. Bombay Education Society, 1955 SCR 568 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.
327. There is thus no question of striking a balance between Article 29(2) 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 classification for differential treatment 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", it must follow that Article 29(2) is subject to the constitutional classification of minorities under Article 30(1).
328. 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 their 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 cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit." (p.614)
329. I agree with the view as expressed by the Learned Chief Justice that there is no question of fixing a percentage when the need may be variable. I would only add that in fixing a percentage, the Court in St. Stephens in fact "reserved" 50% of available seats in a minority institution for the general category ostensible under 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.
330. Apart from this difference with the view expressed by the majority view on the interpretation of Article 29(2) and Article 30(1). I am also unable to concur in the mode of determining the need of a minority community for admission to an educational institution set up by such community. 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.
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S.N. Variava, J.
1. We have had the advantage of going through the judgment of the learned Chief Justice of India, brother justice Khare, brother Justice Quadri and sister Justice Ruma Pal. We are unable to agree with the views expressed by brother Justice Quadri and sister Justice Ruma Pal. The learned Chief Justice has categorised the various questions into the following categories.
1) Is there a fundamental right to set up educational institutions and, if so, under which provision;
2) Does the judgment in Unnikrichnan's case require reconsideration? 3) In case of private unaided institutions can there be Government regulations and if so the what extent?
4) In determining the existence of a religious or linguistic minority, in relation to Article 30, what is to be the unit, the State or Country as a whole; and
5) To what extent the rights of aided minority institutions to administer be regulated.
2. Justice Khare has dealt with categories 4 and 5 above. On other aspects he has agreed with the learned Chief Justice.
3. We are in agreement with the reasoning and conclusion of the learned Chief Justice on categories 1 and 4. In respect of category 2 we agree with the learned Chief Justice that the cost incurred on educating a student in an unaided professional college was more than the total fee which is realized on the basis of the formula fixed in the scheme. This had resulted in revenue shortfalls. As pointed out by the learned Chief Justice even though by a subsequence decision (to Unni Krishnan's) this Court had permitted some percentage of seats within the payment seats to be allotted to Non-Resident Indians, against payment of a higher amount as determined by the authorities, sufficient funds were still not available for the development of those educational institutions. As pointed out by the learned Chief Justice experience has shown that most of the "free seats" were occupied by students from affluent families, while students from less affluent families were required to pay much more to secure admission to "payment seats". As pointed out by the learned Chief Justice the reason for this was that students from affluent families had had better school education and the benefit of professional coaching facilities and were, therefore, able to secure higher merit positions in the common entrance test, and thereby secured the free seats. The education of these more affluent students was in a way being cross-subsidized by the financially poorer students who, because of their lower position in the merit list, could secure only "Payment seats". Thus we agree with the conclusion of the learned Chief Justice that the scheme cannot be considered to be a reasonable restriction and requires reconsideration and that the regulations must be minimum. However we cannot lose sight of the ground realities in our country. The majority of our population come from the poorer section of our society. They cannot and will not be able to afford the fees which will now be fixed pursuant to the judgment. There must therefore be an attempt, not just on the part of the Government and the State, but also by the educational institutions to ensure that students from the poorer section of society get admission. One method would be by making available scholarships or free seats. If the educational institution is willing to provide free seats then the costs of such free seats could also be partly covered by the fees which are now to be fixed. There should be no harm in the rich subsidising the poor.
4. The learned Chief Justice has repeatedly emphasised that capitation fees cannot be charged and that there must be no profiteering. We clarify that the concerned authorities will always be entitled to prevent by enactment or by regulations the charging of exorbitant fees or capitation fees. There are many such enactments already in force. We have not gone not the validity or otherwise of any such enactment. No arguments regarding the validity of any such enactment have been submitted before us. Thus those enactments will not be deemed to have been set aside by this judgment. Of course now by virtue of this judgment the fee structure fixed under any regulation or enactment will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats.
5. We also wish to emphasis, what has already been stated by the learned Chief Justice, that an educational institution must grant admission on some identifiable and acceptable manner. It is only in exceptional cases, that the management may refuse admission to a student. However, such refusal must not be whimsical or for extraneous reasons meaning thereby that the refusal must be based on some cogent and justifiable reasons.
6. In respect of categories 3 and 5 we wish to point out that this Court has been constantly taking the view that these aided educational institutions (whether majority or minority) should not have unfettered freedom in the matter of administration and management. The State which gives aid to educational institution including minority educational institution can impose such conditions as are necessary for the proper maintenance for the higher standards of education. State is also under an obligation to protect the interests of the teaching and non-teaching staff. In many States, there are various statutory provisions to regulate the functioning of these educational institutions. Every educational institution should have basic amenities. If it is a school, it should have healthy surroundings for proper education; it should have a playground, a laboratory, a library and other requisite facilities that are necessary for a proper functioning of the school. The teachers who are working in the schools should be governed by proper service conditions. In States where the entire pay and allowances for the teaching staff and non-teaching staff are paid by the State, the State has got ample power to regulate the method of selection and appointment of teachers. State can also prescribe qualifications for the teachers to be appointed in such schools. Similarly in an aided schools, State sometimes provides aid for some of the teachers only while denying the aid to other teachers. Sometimes the State does not provide aid for the non-teaching staff. The State could, when granting aid, provides for the age and qualifications or recruitment of a teacher, the age of retirement and even for the manner in which an enquiry has to be held by the institution. In other words there could be regulations which ensure that service conditions for teachers and staff receiving aid of the State and the teachers or the staff for which no aid is being provided are the same. Pre-requisite to attract good teachers is to have good service conditions. To bring about an uniformity in the service conditions State should be put at liberty to prescribe the same without intervening in the process of selection of the teachers or their removal, dismissal etc. We agree that there need not be either prior and subsequent approval from any functionaries of the State/University/Board (as the case may be) for disciplinary action, removal or dismissal. However principles of natural justice must be observed and as already provided, by the learned Chief Justice all such action can be scrutinised by the Eduction Tribunal. The provisions contained in the various enactments are not specially challenged before us. The constitutional validity of the statutory provisions vis-a- vis the rights under Articles 19(1)(g), Article 26, Article 29 and Article 30(1) of the Constitution can be examined only if a specific case is brought before the Court. Educational Institution receiving State aid cannot claim to have complete autonomy in the matter of administration. They are found by various statutory provisions which are enacted to protect the interests of the education, students and teachers. Many of the Statutes were enacted long back and stood the test of time. Nobody has ever challenged the provisions of these enactments. The regulations made by the State, to a great extent, depend on the extent of the aid given to institutions including minority institutions. In some States, a lumpsum amount is paid as grant for maintenance of schools. In such cases, the State may not be within its right to impose various restrictions, specially regarding selection and appointment of teachers. But in some States the entire salary of the teaching and non-teaching staff are paid, and these employees are given pension and other benefits, the State may then have a right and an obligation to see that the selection and appointment of teachers are properly made. Similarly the State could impose conditions to the effect that in the matter of appointments, preference shall be given to weaker sections of the community, specially physically handicapped or dependents of employees who died in harness. All such regulations may not be said to be bad ad/or invalid and may not even amount to infringing the rights of the minority conferred under Article 30(1) of the Constitution. Statutory provisions such as labour laws and welfare legislations etc. would be applicable to minority educational institutions. As this decision is being rendered by a larger bench consisting of eleven judges, we feel that it is not advisable and we should not be taken to have laid down extensive guidelines in respect of myriads of legal questions that may arise for consideration. In our view in this case the battlelines were not drawn up in the correct perspective and many of the aggrieved or affected parties were not before us.
7. As regards category 5, we agree with the conclusion of both the learned Chief Justice as well as Justice Khare that Article 29(2) applies to Article 30. However, we are unable to agree with the final reasoning that there must be a balancing between Articles 29(2) and 30(1). We, therefore, give our reasons for dis-agreeing with the final conclusion that there must be a balancing between
Articles 29(2) and 30.
8. We are conscious of the fact that the learned Chief Justice and Justice Khare have exhaustively dealt with the authorities. However, in our view there is need to emphasise the same. We are here called upon to interpret Articles 29(2) and 30. Submissions have been made that in interpreting these Articles the historical background must be kept in mind and that a contextual approach should be taken. We must, therefore, a) look at the history which led to incorporation of these Articles. The intention of the framers will then disclose how the contextual approach must be based; b) apply the well settled principles of interpretation; and c) keep the doctrine of "State Decisis" in mind.
9. In the case of Kesavananda Bharati v. State of Kerala, it has been held that in interpreting the provisions of a Statute or the Constitution it is the duty of the Court to find out the legislative intent. It has been held that Constituent Assembly debates are not conclusive but that, in a Constitutional matter where the intent of the framers of the Constitution is to be ascertained, the Court should look into the proceedings and the relevant data, including the speeches, which throw light on ascertaining the intent. In considering the nature and extent of rights conferred on minorities one must keep in mind the historical background and see how and for what purpose Article 30 was framed.
10. In the case of R.S. Nayak v. A.R. Antulay reported in AIR (1984) SC 684 at page 686, it has been held as follows:
"Reports of the Committee which preceded the enactment of a legislation, reports of Joint Parliament Committee, report of a Commission set up for collecting information leading to the enactment are permissible external aid to construction. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament, why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment, existing state of Law, the environment necessitating enactment of legislation, and the object sought to be achieved, be denied to Court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction.
The modern approach has to a considerable extent eroded the exclusionary rule even in England."
11. The partition of India caused great anguish, pain, bitterness and distrust amongst the various communities residing in India. Initially there was a demand for separate electorate and reservation of seats. However the principle of unity and equality for all prevailed. In return it was agreed that minorities would be given special protections.
12. The reason why Article 30(1) was embodied in the Constitution has been set out by Chief Justice Ray (as he then was) in the case of St. Xaviers College v. State of Gujarat. The relevant portion reads as follows: "The right to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the majority who can always having their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. xxx xxx xxx
xxx xxx xxx xxx xxx xxx
Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.
xxx xxx xxx
xxx xxx xxx xxx xxx xxx
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 choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. this is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole." (emphasis supplied)
In the same Judgment, Justice Khanna has held as follows: "Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. India is the second most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on the Indian polity and India today represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissentions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats and separate electorates. In order to bring about integration and fusion of the different sections of the population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instil a sense of confidence and security in the minorities. Those provisions were a king of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens. (emphasis supplied)
13. This was the basis on which minority rights were guaranteed. The rights were created so that minorities need have no apprehension that they would not be able, either in the religious or in the educational fields, to do what the politically powerful majority could do. In matters of education what the politically powerful majority could do was to establish and administer educational institutions of their choice at their own expense. Principles of equality required that the minorities be given the same rights. The protection/special right was to ensure that the minorities could also establish and administer educational institutions of their choice at their own expense. The demand for separatism and separate electorates was given up as principles of secularism and equality were considered more important. The principle of secularism and equality meant that State would not discriminate on grounds of religion, race, caste, language or any of them. Thus once State aid was given and/or taken then, whether majority or minority, all had to adhere to principles of equality and secularism. There never was any intention or desire to create a special or privileged class of citizens.
14. With this background, it is necessary to see how Articles 29 and 30 came to be framed/incorporated in the Constitution. Mr. Munshi was a strong advocate for minority rights. Mr. Munshi sent to the Advisory Committee a Note with which he forwarded a draft Constitution. This draft Constitution clearly indicates what rights were contemplated in framing, what is now, Article 30(1) Draft Article VI read as follows:
"The Right to Religious and Cultural Freedom
(1) All citizens are equally entitled to freedom of conscience and to the right freely to profess and practise religion in a manner compatible with public order, morality or health :
Provided that the economic, financial or political activities associated with religious worship shall not be deemed to be included in the right to profess or practise religion.
(2) All citizens are entitled to cultural freedom, to the use of their mother tongue and the script thereof, and to adopt, study or use any other language and script of their choice.
(3) Citizens belonging to national minorities in a State whether based on religion or language have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion. (emphasis supplied.
(4) No person may be compelled to pay taxes the proceeds of which are specifically appropriated in payment of religious requirements of any community of which he is not a member.
(5) Religious instruction shall not be compulsory for a member of a community which does not profess such religion.
(6) No person under the age of eighteen shall be free to change his religious persuasion without the permission of his parent or guardian. (7) Conversion from one religion to another brought about by coercion, undue influence or the offering of material inducement is prohibited and is punishable by the law of the Union.
(8) It shall be the duty of every unit to provide, in the public educational system in towns and districts in which a considerable proportion of citizens of other than the language of the unit are residents, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such citizens through the medium of their own language.
Nothing in this clause shall be deemed to prevent the unit from making the teaching of the national language in the variant and script of the choice of the pupil obligatory in the schools.
(9) No legislation providing State-aid for schools shall discriminate against schools under the management of minorities whether based on religion or language.
Every monument of artistic or historic interest or place of natural interest throughout the Union is guaranteed immunity from spoliation, destruction, removal, disposal or export except under a law of the Union, and shall be preserved and maintained according to the law or the Union." This shows that the intention was to give to the minorities the right to form, control and administer, amongst others educational institutions, at their own expense. It is also to be noted that Article (9) is similar to what is now Article 30(2). As the educational institutions were to be at their own expense, State aid was not made compulsory.
15. At this stage it must be remembered that the minorities to whom rights were being given, were not minorities who were socially and/or economically backward. There was no fear that economically, these religious or linguistic minorities, would not be able to establish and administer educational institution. There was also no fear that, in educational Institutions established for the benefit of all citizens, the children of these religious or linguistic minorities would not be able to compete. These rights were being conferred only to ensure that the majority, who due to their numbers would be politically powerful, did not prevent the minorities from establishing and administering their own educational institutions. In so providing, the basic feature of the Constitution, namely, secularism and equality for all citizens, whether majority or minority was being kept in mind.
16. In this behalf, an extract from Kesavananda's case is very relevant. It reads as follows:
"It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6, 1946, only three main communities: general, Muslims and Sikhs. General community included all those who were non-Muslims or non-Sikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were: (1) willingness to conclude a treaty with His Majesty's Government to cover matters arising out of transfer of power and (2) adequate provisions for the protection of the minorities. Pursuant to the above and Paras 5 and 6 of the Objectives Resolution the Constituent Assembly set up an Advisory Committee on January 24, 1947. The Committee was to consist of representatives of muslims, the depressed classes or the scheduled castes, the Sikhs, Christians, Parsis, Anglo-Indians, tribals and excluded areas besides the Hindus. As a historical fact it is safe to say that at a meeting held on May 11, 1949, a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole- hearted support from an overwhelming majority of the members of the Advisory Committee. So far as the schedule castes were concerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnesses so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities' rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as a historical fact which moulded its nature and character. Since the language of the Preamble was taken from the resolution itself the declaration in the Preamble that India would be a Sovereign Democratic Republic which would secure to all its citizens justice, liberty and equality was implemented in Parts III and IV and other provisions of Constitution. These formed not only the essential features of the Constitution but also the fundamental conditions upon and the basis on which the various groups and interest adopted the Constitution as the Preamble hoped to create one unified integrated community. (emphasis supplied)"
17. The draft Articles were then forwarded by the Advisory Committee to a Committee for fundamental rights. They were also forwarded to another Committee known as the Committee of Minorities. These two Committees thereafter revised the draft and the revised draft was then forwarded to the Constituent Assembly for discussion. The relevant portion of the revised draft read as follows:
"Rights relating to Religion
13. All persons are equally entitled to freedom of conscience, and the right freely to profess, practise and propagate religion subject to public order, morality or health and to the other provisions of this Part. Explanation 1. - The wearing the carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation 2. - The above rights shall not include any economic, financial, political or other secular activities that may be associated with religious practice.
Explanation 3. - The freedom of religious practice guaranteed in this clause shall not debar the State from enacting laws for the purpose of social welfare and reform and for throwing open Hindu religious institutions of a public character to any class or section of Hindus.
14. Every religious denomination or a section thereof shall have the right to manage its own affairs in matters of religion and, subject to law, to own, acquire and administer property, movable and immovable, and to establish and maintain institutions for religious or charitable purposes.
15. No person may be compelled to pay taxes, the proceeds of which are specifically appropriated to further or maintain any particular religion or denomination.
16. No person attending any school maintained or receiving aid out of public funds shall be compelled to take part in the religious instruction that may be given in the school or to attend religious worship held in the school or in premises attached thereto.
17. Conversion from one religion to another brought about by coercion or undue influence shall not be recognised by law.
Cultural and Educational Rights
18. (1) Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect. (2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission into State educational institutions, nor shall any religious instruction be compulsorily imposed on them.
(3)(a). All minorities whether based on religion, community or language shall be free in any unit to establish and administer educational institutions of their choice.
(b) The State shall not, while providing State aid to schools, discriminate against schools under the management or minorities whether based on religion, community or language."
Thus under Clause 18(3)(a) minorities based on religion, community and language were to be free to establish and administer educational institutions. The Constituent Assembly Debates, of 30th August, 1947, indicate that it was understood and clear that the right to establish and administer educational institutions was to be at their own expense. During the Debate on 30th August, 1947, Mr. K.T.M. Ahmed Ibrahim Sahib Bahadur proposed an amendment in Clause 18(2). The suggested amendment read as follows:
"Provided that this clause does not apply to state Educational institutions maintained mainly for the benefit of any particular community or section of the people."
18. Similarly Mrs. Purnima Banerji proposed an amendment to the effect that under Clause 18(2) after the words "state" the words "and State-aided" be inserted. To be noted that both Mr. K.T.M. Ahmed and Mrs. Purnima Banerji were, by their proposed amendments, seeking to enhance rights of minorities. The discussions which follow these proposed amendments are very illustrative and informative. These discussions read as follows: "Mrs. Purnima Banerji: Sir, my amendment is to clause 18(2). It reads as follows:-
"That after the word 'State', the words 'and State-aided' be inserted." The purpose of the amendment is that no minority, whether based on community or religion shall be discriminated against in regard to the admission into State-aided and State educational institutions. Many of the provinces, e.g., U.P., have passed resolutions laying down that no educational institution will forbid the entry of any members of any community merely on the ground that they happened to belong to a particular community - even if that institution is maintained by a donor who has specified that that institution should only cater for members of his particular community. If that institution seeks State aid, it must allow members of other communities to enter into it. In the olden days, in the Anglo-Indian schools (it was laid down that, though those school were specifically intended for Anglo-Indians, 10 per cent of the seats should be given to Indians. In the latest report adopted by this House, it is laid down at 40 per cent. I suggest Sir, that if this clause is included without the amendment in the Fundamental Rights, it will be a step backward and many Provinces who have taken a step forward will have to retract their steps. We have many institutions conducted by very philanthropic people, who have left large sums of money at their disposal. While we welcome such donations, when a principle has been laid down that, if any institution receives State aid, it cannot discriminate or refuse admission to members of other communities, then it should be followed. We know, Sir, that many a Province has got provincial feelings. If this provision is included as a fundamental right, I suggest that it will be highly detrimental. The Honourable Mover has not told us what was the reason why he specifically excluded State-aided institutions from this clause. If he had explained it, probably the House would have been convinced. I hope that all the educationists and other members of this House will support my amendment (emphasis supplied)
Even though Mrs. Purnima Banerji is seeking to give further protection to students of minority community, her speech indicates the principle, accepted by all, that if an institute receives State aid it cannot discriminate or refuse admission to members of other communities. the reply of Mr. Munshi is as follows:-
Mr. K.M. Munshi: Mr. President, Sir, the scope of this Clause 18(2) is only restricted to this, that where the State has got an educational institution of its own, no minority shall be discriminated against. Now, this does recognise to some extent the principle that the State cannot own an institution from which a minority is excluded. As a matter of fact, this to some extent embodies the converse proposition over which discussion took place on Clause 16, namely no minority shall be excluded from any school maintained by the State. That being so, it secures the purpose which members discussed a few minutes ago. This is the farthest limit to which I think, a fundamental right can go.
Regarding Ibrahim Sahib's amendment, I consider that it practically destroys the whole meaning and content of this fundamental right. This minority right is intended to prevent majority control legislatures from favouring their own community to the exclusion of other communities. The question therefore is : Is it suggested that the State should be at liberty to endow schools for minorities? Then it will come to this that the minority will be a favoured section of the public. This destroys the very basis of a fundamental right. I submit that it should rejected. (emphasis supplied)
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Then comes Mrs. Banerji's amendment. it is wider than the clause itself. As I pointed out, Clauses 16 to 18 are really two different propositions. This is with regard to communities. Through the medium of a fundamental right, not by legislation, not by administrative action this amendment seeks to close down thousands of institutions in this country.
I can mention one thing so far as my province is concerned there are several hundreds of Hindu Schools and several dozens of Muslim Schools. Many of them are run by charities which are exclusively Hindu or Muslim. Still the educational policy of the State during the Congress regime has been that as far as possible no discrimination should be permitted against any pupil by administrative action in these schools. Whenever a case of discrimination is found, the Educational Inspector goes into it; particularly with regard to Harijans it has been drastically done in the Province of Bombay. Now if you have a fundamental right like this, a school which has got a thousand students and receives Rs. 500 by way of grant from Government, becomes a State aided School. A trust intended for one community maintains the School and out of Rs. 50,000 spent for the School Rs. 500 only comes from Government as grant. But immediately the Supreme Court must hold that this right comes into operation as regards this School. Now this, as I said, can best be done by legislation in the provinces, through the administrative action of the Government which takes into consideration susceptibilities and sometimes makes allowances for certain conditions. How can you have a Fundamental law about this? How can you divert crores of rupees of trust for some other purpose by a stroke of the pen? The idea seems to be that by placing these two lines in the constitution everything in this country has to be changed without even consulting the people or without even allowing the legislatures to consider it. I submit that looking into the present conditions it is much better that these things should be done by the normal process of educating the people rather than by putting in a Fundamental Right. This clause is intended to be restrictive that neither the Federation nor a unit shall maintain an institution from which minorities are excluded. If we achieve this, this will be a very great advance that we would have made and the House should be content with this much advance."
Thus to be seen that Mr. Munshi echoed the sentiment so often expressed by Counsel before us i.e. that by securing a small amount of aid, the right to administer educational institutions cannot be given up. This was immediately answered as follows:
"Mr. Hussain Imam : I will not take more than two minutes of the time of the House. I think there is nothing wrong with the amendment which has been moved by Mrs. Banerji. She neither wants those endowed institutions to be closed, nor their funds to be diverted to purposes for which they were not intended. What she does ask is that the State being a secular State, must not ge a party to exclusion. It is open to the institutions which want to restrict admission to particular communities or particular classes, to refuse State aid and thereby, after they have refused to State aid, they are free to restrict their admission of the students to any class they like. The State will have no say in the matter. Here the word 'recognize' has not been put in. In Clause 16 we put the all embracing word 'recognize'. Therefore all this trouble arose that we had to refer that to a small Committee. In this clause the position is very clear. And Mr. Munshi, as a clever lawyer, has tried to cloud this. It is open to the institution which has spent Rs. 40,000 from its funds not to receive Rs. 500 as grant from the State but it will be open to the State to declare that as a matter of State policy exclusiveness must not be accepted and this would apply equally to the majority institutions as well as minority institutions. No institution receiving State aid should close its door to any other class of persons in India merely because its donor has originally so desired to restrict. They are open to refuse the State aid and they can have any restriction they like. (emphasis supplied)
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Pandit Hirday Nath Kunzru : Mr. President, I support the amendment moved by Mrs. Banerji. I followed with great interest Mr. Munshi's exposition. His view was that if we accepted the principle that educational institutions maintained by the State shall be bound to admit boys of all communities, it would be a great gain and that we should not mix up this matter with other matters howsoever important they may be. I appreciate his view point. Nevertheless I think that it is desirable in view of the importance that we have attached to various provisions accepted by us regarding the development of a feeling of unity in the country that we should today accept the principle that a boy shall be at liberty to join any school whether maintained by the State or by any private agency which receives aid from State funds. No school should be allowed to refuse to admit a boy on the score of his religion. This does not mean, Sir, as Mr. Munshi seems to think, that the Headmaster of any school would be under a compulsion to admit any specified number of boys belonging to any particular community. Take for instance an Islamia School. If 200 Hindu boys offer themselves for admission to that School, the Headmaster will be under no obligation to admit all of them. But the boys will not be debarred, from seeking admission to it simply because they happen to be Hindus. The Headmaster will lay down certain principles in order to determine which boys should be admitted.
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Sir, we have decided not to allow separate representation in order to create a feeling of oneness throughout the country. We have even disallowed cumulative voting because, as Sardar Vallabhabhai Patel truly stated the other day, its acceptance would mean introduction by the backdoor of the dangerous principle of communal electorates which we threw out of the front door. So great being the importance that we attach to the development of a feeling of nationalism, is it not desirable and it is not necessary that our educational institutions which are maintained or aided by the State should not cater exclusively for boys belonging to any particular religion or community? If it is desirable in the case of adults that a feeling of unity should be created, is it not much more desirable where immature children and boys are concerned that no principle should be accepted which would allow the dissemination, directly or indirectly, of anti-national ideas or feelings?
Sir, since the future welfare of every State depends on education, it is I think very important that we should today firmly lay down the principle that a school, even though it may be a private school, should be open to the children of all communities if it receives aid from Government. This principle will be in accordance with the decisions that we have arrived at on other matters so far. Its non-acceptance will be in conflict with the general view regarding the necessity of unity which we have repeatedly and emphatically expressed in this House. (emphasis supplied) These discussions clearly indicate that the main emphasis was on unity and equality. The protection which was being given to the minorities was merely to ensure that the politically strong majority did not prevent the minorities from having educational institutions at their own expense. It is clear that the framers always intended that the principles of secularism and equality were to prevail over even minorities' rights. If the State aid was taken then there could be no discrimination or refusal to admit members of other communities. On this basis the amendments moved by Mr. K.T.M. Ahmed Ibrahim Sahib Bahadur and Mrs. Purnima Banerji (which sought to create additional rights in favour of minorities) were rejected.
19. The draft was taken sent back to the Committee. When it came back to the Constituent Assembly the relevant Articles read as follows: "22. (1) No religious instruction shall be provided by the State in any educational institution wholly maintained out of State funds: Provided that nothing in this clause shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(2) No person attending any education Institution recognised by the State or receiving aid out of State funds shall 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.
(3) Nothing in this article shall prevent any community or denomination from providing religious instruction for pupils of that community or denomination in an educational institution outside its working hours. Cultural and educational rights
23. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script and culture of its own shall have the right to conserve the same.
(2) No minority whether based on religion, community or language shall be discriminated against the regard to the admission of any person belonging to such minority into any educational institution maintained by the State. (3)(a) All minorities whether based on religion, community or language shall have the right to establish and administer educational institutions of their choice.
(b) 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, community or language.
20. These were discussed in the Constituent Assembly on 7th and 8th December, 1948. It must be noted that there was a practice to circulate in advance, any proposed amendment, which a Member desired to move. The proposed amendment was circulated in advance for sound reasons, namely that every body else would have notice of it and be prepared to express views for or against the proposed amendment. On 7th December, 1948 Clause 22 was being considered, Mr. H.V. Kamath proposed as follows: "Shri H.V. Kamath (C.P. and Berar : General). Mr. Vice President, I move- "That in Clause (2) of Article 22, the words "recognised by the State or" be deleted."
I move this amendment with a view to obtaining some clarification on certain dark corners of these two articles - Articles 22 and 23. I hope that my learned Friend Dr. Ambedkar will not, in his reply, merely toe the line of least resistance and say "I oppose this amendment", but will be good enough to give some reasons why he opposes or rejects my amendment, and I hope he will try his best to throw some light on the obscure corners of this article. If we scan the various clauses of this article carefully and turn a sidelong glance at the next articles too, we will find that there are some inconsistencies or at least an inconsistency. Clause (1) of Article 22 imposes an absolute ban on religious instruction in institutions which are wholly maintained out of State funds. The proviso, however, excludes such institutions as are administered by the State which have been established under an endowment or trust - that is, under the proviso those institutions which have been established under an endowment or trust and which require, under the conditions of the trust, that religious instruction must be provided in those institutions, about those, when the State administers then, there will not be any objection to religious instruction. Clause (2) lays down that no person attending an institution recognised by the State or receiving aid out of State funds shall be required to take part in religious instruction. The means, it would not be compulsory. I am afraid I will have to turn to Clause 23, Sub-clause (3) (a) where it is said that all minorities, whether based on religion, community or language, shall have the right to establish and administer educational institutions of their choice. Now, is it intended that the institutions referred to in the subsequent clause which minorities may establish and conduct and administer according to their own choice, is it intended that in these institutions the minorities would not be allowed to provide religious instruction? There may be institutions established by minorities, which insist on students' attendance at religious classes in those institutions and which are otherwise unobjectionable. There is no point about State aid, but I cannot certainly understand why the State should refuse recognition to those institutions established by minorities where they insist on compulsory attendance at religious classes. Such interference by the State I feel is unjustified and unnecessary. Besides, this conflicts with the next article to a certain extent. If minorities have the right to establish and administer educational institutions of their own choice, is it contended by the Honourable Dr. Ambedkar that the State will say "You can have institutions, but you should not have religious instructions in them if you want our recognition'. Really it beats me how you can reconcile these two points of view in Articles 22 and
23. The minority, as I have already said, may establish such a school or its own pupils and make religious instruction compulsory in that school. If you do not recognise that institution, then certainly that school will not prosper and it will fail at attract pupils. Moreover, we have guaranteed certain rights to the minorities and, it may be in a Christian School, they may teach the pupils the Bible and in a Muslim school the Koran. If the minorities, Christians and Muslims, can administer those institutions according to their choice and manner, does the House mean to suggest that the State shall not recognize such institutions? Sir, to my mind, if you pursue such a course, the promises we have made to the minorities in our country, the promises we have made to the ear we shall have broken to the heart. Therefore I do not see any point why, in institutions that are maintained and conducted and administered by the minorities for pupils of their own community the State should refuse to grant recognition, in case religious instruction is compulsory. When once you have allowed them to establish schools according to their choice, it is inconsistent that you should refuse recognition to them on that ground. I hope something will be done to rectify this inconsistency."
Thus it is to be seen that Shri H.V. Kamath is referring not just to draft Article
22 but also to draft Article 23(3)(a). He is pointing out that there is an apparent conflict between these two Articles. Draft Articles 22 and 23(3) (a) are, with minor changes, what are now Articles 28(3) and 30(1). Dr. Ambedkar opposed the amendments proposed by Shri H.V. Kamath for various reasons, one of which is as follows:
"We have accepted the proposition which is embodied in Article 21, that public funds raised by taxes shall not be utilised for the benefit of any particular community."
21. Shri H.V. Kamath then asked for a clarification as follows: "On a point of clarification, what about institutions and schools run by a community or a minority for its own pupils - not a school where all communities are mixed but a school run by the community for its own pupils?"
22. Thus Shri H.V. Kamath is again emphasising that there could be minority educational institutions run for their own pupils. The answer to this, by Dr. Ambedkar, is as follows:
The Honourable Dr. B.R. Ambedkar: If my Friend Mr. Kamath will read the other article he will see that once an institution, whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to all communities, that provision he has not read." (emphasis supplied)
23. To be noted that in the draft Articles there is no clause which provided that if an institution, whether maintained by the community or not, gets a grant, it shall keep the school open to all communities. The next clause which Dr. Ambedkar referred to, was the proposed amendment moved by Pandit Thakur Dass Bhargava. As stated above this proposed amendment had already been circulated to all. It is clear that Dr. Ambedkar had already accepted the proposal of Pandit Thakur Dass Bharvava.
24. On 8th December, 1948, when Pandit Thakur Dass Bhargava moved his amendment, the debate read as follows:
"Pandit Thakur Das Bhargava: Sir, I beg to move.
That for amendment No. 687 of the List of amendments, the following be substituted:-
"That for Clause (2) of Article 23, the following be substituted :- "(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds of grounds only of religion, race, caste, language or any of them."
and Sub-clauses (a) and (b) of Clause (3) of Article 23 be renumbered and new Article 23-A".
Sir, I find there are three points of difference between this amendment and the provisions of the section which it seeks to amend. The first is to put in the words 'no citizen' for the words 'no majority'. Secondly that not only the institutions which are maintained by the State will be included in it, but also such institutions as are receiving aid out of state funds. Thirdly, we have, instead of the words "religion, community or language", the words, "religion, race, caste, language or any of them". Now, Sir, it is happens that the words "no minority" seeks to differentiate the minority from the majority, whereas you would be pleased to see that in the Chapter the words of the heading are "cultural and educational rights", so that the minority rights as such should not find any place under this section. Now if we read Clause (2) it would appear as if the minority had been given certain definite rights in this clause, whereas the national interests require that no majority also should be discriminated against in this matter. Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority. It was the habit of our English masters that they wanted to create discriminations of this sort between the minority and the majority. Sometimes the minority said that they were discriminated against and on other occasions the majority felt the same thing. This amendment brings the majority and the minority on an equal status. In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority. Therefore, what this amendment seeks to do is that the majority and the minority are brought on the same level. There will be no discrimination between any member of the minority or majority in so far as admission to educational institutions are concerned. So I should say that this is a charter of the liberties for the student-world of the minority and the majority communities equally.
The second change which is amendment seeks to make is in regard to the institutions which will be governed by this provision of law. Previously only the educational institutions maintained by the State were included. This amendment seeks to include such other institutions as are aided by State funds. There are a very large number of such institutions, and in future, by this amendment the rights of the minority have been broadened and the rights of the majority have been secured. So this is a very healthy amendment and it is a kind of nation-building amendment. Now, Sir, the word "community" is sought to be removed from this provision because "community" has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then "community" as such has no basis. So the word "community" is meaningless and the words substituted are "race or caste". So this provision is so broadened that on the score of caste, race, language, or religion no discrimination can be allowed. My submission is that considering the matter from all the standpoints, this amendment is one which should be accepted unanimously by this House." (emphasis supplied)
25. To be noted that the proposed Article 23(2) is now Article 29(2). It is being incorporated in Article 23 which also contained what is now Article 30(1). Pandit Thakur Dass Bhargava was proposing this amendment with the clear intention that it should apply to minority educational institutions under, what is now Article 30(1). The whole purpose is to further principles of secularism and to see that in State maintained and State aided educational institutions there was no distinction between majority or minority communities. At this stage it must be noted that no contrary view was expressed at all. Dr. Ambedkar then replied as follows: "The Honourable Dr. B.R. Ambedkar: Sir, of the amendments which have been moved to Article 23, I can accept amendment No. 26 to amendment No. 687 by Pandit Thakur Dass Bhargava. I am also prepared to accept amendment No. 31 to amendment No. 690, also moved by Pandit Thakur Dass Bhargava."
26. The amendment proposed by Pandit Thakur Dass Bhargava was unanimously accepted by the Constituent Assembly. This is how and why, what is now Article 29(2) was framed and incorporated. Clearly it was to govern all educational institutions including minority educational institutions under what is now Article 30(1). The final resolution is as follows: "Mr. Vice-President: The question is:
That for Clause (2) of Articles 23, the following be substituted:- "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";
and Sub-clause (a) and (B) of Clause (3) of Article 23 be renumbered as new Article 23-A.
The motion was adopted."
27. A reading of the Constituent Assembly debates clearly show that the intention of the framers of the Constitution was that Article 29(2) was to apply to all educational institutions, including minority educational institutions under Article 30.
28. This being the historical background and the intention of the framers, the contextual approach must also be one which gives effect to the minority rights but which does not elevate them into a special or privileged class of citizens. The contextual approach must therefore be that minorities have full rights to establish and administer educational institution at their own costs, but if they choose to take State aid they must then abide by the Constitutional mandate of Article 29(2) and with principles of equality and secularism.
29. The same result follows if well settled principles of interpretation are applied. It is settled law that if the language of the provision, being considered, is plain and unambiguous the same must be given effect to, irrespective of the consequences that may result or arise. It is also settled law that while interpreting provisions of a Statute, if two interpretations are possible, one which leads to no conflict between the various provisions and another which leads to a conflict between the various provisions, then the interpretation which leads to no conflict must always be accepted. As already been seen, the intention of the framers of the Constitution is very clear. The framers unambiguously and unanimously intended that rights given under Article 30(1) could be fully enjoyed so long as the educational institutions were established and administered at their own costs and expense. Once State aid was taken, then principles of equality and secularism, on which our Constitution is based, were to prevail and admission could not be denied to any student on grounds of religion, race, caste, language or any of them.
30. A plain reading of Article 29(2) shows that it applies to "any educational institution" maintained by the State or receiving aid out of State funds. The words "any educational institution" takes within its ambit an educational institution established under Article 30(1). It is to be remembered that when Article 29(2) [i.e. Article 23(2)] was framed it was part of the same Article which contained what is now Article 30(1). Thus it was clearly meant to apply to Article 30(1) as well. Significantly Article 30 nowhere provides that the provisions of Article 29(2) would not apply to it. Article 30(1) does not exclude the applicability of the provisions of Article 29(2) to educational institutions established under it. A plain reading of the two Articles indicates that the rights given under Article 30(1) can be fully exercised so long as no aid is taken from the State. It is for this reason that Article 30 does not make it compulsory for a minority educational institution to take aid or for the State to give it. All that Article 30(2) provides is that the State in granting aid to educational institutions shall not discriminate against any educational institution on the ground that it is under the management of a minority. In cases where the State gives aid to educational institutions the State would be bound by the Constitutional mandate of Article 29(2) to ensure that no citizen is denied admission into the educational institution on grounds of religion, race, caste, language or any of them. By so insisting the State would not be discriminating against a minority educational institution. It would only be performing the obligation cast upon it by the Constitution of India.
31. This interpretation is also supported by the wording of Article 30(2). Article 30(2) merely provides that the State shall not discriminate on the ground that it is under the management of a minority. To be noted that Article 30(2) does not provide that State shall not in granting aid impose any condition which would restrict or abridge the rights guaranteed under Article 30(1). The framers were aware that when State aid was taken the principles of equality and secularism, which are the basis of our Constitution, would have to prevail. Clearly the framers of the Constitution considered the principle of equality and secularism to be more important than the rights under Article 30(1). Thus in Article 30(2) it was advisedly not provided that rights under Article 30(1) could not be restricted or abridged whilst granting aid. A plain reading of Article 30(2) shows that the framers of the Constitution envisaged that certain rights would get restricted and/or abridged when a minority educational institute chose to receive aid. It must also be noted that when property rights were deleted [by deletion of Article 19(1)(f)] the framers of the Constitution realised that rights under Article 30(1) would get restricted or abridged unless specifically protected. Thus Article 30(1A) was introduced. Article 30(1A), unlike Article 30(2), specifically provides the acquisition of property of a minority educational institute must be in a manner which does not restrict or abrogate the rights under Article 30(1). When the framers so intended they have specifically so provided. Significantly even after Judgments of this Court (set out hereafter) which laid down that Article 29(2) applied to Article 30(1), the framers have not amended Article 30 to provide to the contrary.
32. Even though a plain reading of Articles 29(2) and Article 30 leads to no clash between the two Articles, it has been submitted by counsel on behalf of minorities that the right to establish and administer educational institutions be considered an absolute right and that by giving aid the State cannot impose conditions which would restrict or abrogate and/or abridge, in any manner, the right under Article 30(1). It has been submitted that the right to administer educational institutions includes the right to admit students. It has been submitted that the minorities, whether based on religion or language, have a right to admit students of their community. It is submitted that this right is not taken away or abridged because State aid is taken. It is submitted that notwithstanding the plain language of Articles 29(2) and 30 it must be held that the rights under Article 30(1) prevail over Article 29(2).
33. To accept such an argument one would have to read into Article 30(2) words to
the effect "state cannot in granting aid lay down conditions which would restrict, abridge or abrogate rights under Article 30(1)" or to read into Article 30(1) words to the effect "notwithstanding the provisions of Article 29(2)". Purposely no such words are used. A clash is sought to be created between Article 30(1) and 29(2) when no such clash exists. The interpretation sought to be given is on presumption that rights under Article 30(1) are absolute. As is set out in greater detail hereafter, every single authority of this Court, for the past over 50 years, has held that the rights under Article 30(1) are subject to restrictions. All counsel appearing for the minority educational institutions conceded that rights under Article 30(1) are subject to general secular laws of the country. If rights under Article 30(1) are subject to other laws of the country it can hardly be argued that they are not subject to a constitutional provision.
34. The interpretation sought to be placed not only creates a clash between Articles 29(2) and 30 but also between Article 30 and Article 15(1). Article 15(1) prohibits the State from discriminating against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. If the State were to give aid to a minority educational institution which only admits students of its community then it would be discriminating against other citizens who cannot get admission to such institutions. Such an interpretation would also lead to clash between Article 30 and Article 28(3). There may be a religious minority educational institute set up to teach their own religion. Such an institute may, if it is unaided, only admit students who are willing to say their prayers. Yet once aid is taken such an institution cannot compel any student to take part in religious instructions unless the student or his parent consents. If Article 30(1) were to be read in a manner which permits State aided minority educational institutions to admit students as per their choice, then they could refuse to admit students who do not agree to take part in religious instructions. The prohibition prescribed in Article 28(2) could then be rendered superfluous and/or nugatory. Apart from rendering Article 28(2) nugatory such an interpretation would set up a very dangerous trend. All minority educational institutions would then refuse to admit students who do not agree to take part in religious instructions. In all fairness to all the counsels appearing for minority educational institutions, it must be stated that not a single counsel argued that Article 28(2) would not govern Article 30(1). All counsel fairly conceded that Article 30(1) would be governed by Article 28(2). One fails to understand how Article 30(1) can be held to be subject to Article 28(2) but not subject to Article 29(2).
35. Accepting such an interpretation would also lead to an anomalous situation. As is being held all citizens have a fundamental right to establish and carry on an educational institution under Article 19(1)(g). An educational institution can also be established and maintained under Article 26(a). An educational institution could also be established under Article 29(1) for purposes of conserving a distinct language, script or culture. All such educational institutions would be governed by Article 29(2). Thus if a religious educational institution is established under Article 26(a) it would on receipt of State aid have to comply with Article 29(2). Similarly an educational institute established for conserving a distinct language, script or culture would, if it is receive State aid, have to comply with Article 29(2). Such institution would also have been established for benefit of their own community or language or script or culture. If such educational institutions have to comply with Article 29(2) it would be anomalous to say that a religion or linguistic educational institution, merely because it is set up by a minority need not comply with Article 29(2). The anomaly would be greater because an educational institute set up under Article 26(a) would be for teaching religion and an educational institute set up under Article 29(1) would be for conserving a distinct language. On the other hand an educational institute set up under Article 30(1) may be to give general secular education. It would be anomalous to say that an educational institute set up to teach religion or to conserve a distinct language, script or culture has to comply with Article 29(2) but an educational institute set up to give general secular education does not have to comply with Article 29(2). It must again be remembered that Article 30 was not framed to create a special or privileged class of citizens. It was framed only for purposes of ensuring that the politically powerful majority did not prevent the minority from having their educational institute. We cannot give to Article 30(1) a meaning which would result in making the minorities, whether religious or linguistic, a special or privileged class of citizens. We should give to Article 30(1) a meaning which would further the basic and overriding principles of our Constitution viz. equality and secularism. The interpretation must not be one which would create a further divide between citizen and citizen.
36. It has also been submitted that a minority educational institute would have been established only for the purpose of giving education to students of that particular religious or linguistic community. It has been submitted that if Article 29(2) were to apply then the very basis of establishing such an educational institution would disappear once State aid is taken. Whilst considering such a submission one must keep in mind that the desire to establish educational or other institutions for the benefit of students of their own community would be there not only in minority communities. Such a desire would be there in all citizens and communities, whether majority or minority. If the majority communities, whether religious or linguistic, can establish and administer educational institutions for their own community at their own costs why should the position be different for minorities. If an educational institute established by a majority community for members of that community only, takes States aid, it would then lose the right to admit only students of its own community. it would have to comply with the Constitutional mandate of Article 29(2). The position is no different for an educational institute established by a minority. The basic feature of our Constitution is equality and secularism. It follows that the minority cannot be a more privileged class or section of citizen. At the cost of repetition it is again emphasised that Article 30 does not deal with minorities who are economically or socially backward. These are not communities whose children are not capable of competing on merit, e.g. a Tamilian in Tamil competes with others and gets admission on merit. Even when he/she shifts to Maharashtra he/she continues to be able to compete openly and get admission on merit. Merely because a Tamilian shifts to Maharashtra or some other State does not mean that Tamilian becomes a citizen entitled to special privilege or rights not available to other citizens. This was not the purpose or object of Article 30. Article 30 was framed only to ensure that the Maharashtrians, by reason of their being politically powerful, do not prevent the Tamilian from establishing an educational institution at their own cost. Article 20 merely protects the right of the minority to establish and administer an educational institution, i.e. to have the same rights as those enjoyed by majority. Article 30 gives no right to receive State aid. It is for the institution to decide whether it wants to received aid. If it decides to take State aid then Article 30(2) merely provides that the State will not discriminate against it. When State, whilst giving aid, asks the minority educational institute to comply with a constitutional mandate, it can hardly be said that the State is discriminating against that institute. The State is bound to ensure that all educational institutes, whether majority or minority, comply with the constitutional mandate.
37. Another respect to be kept in mind is that in practical terms, throwing open admission to all, does not affect rights under Article 30(1). If the educational institution is for purposes of teaching the religion or language of the concerned minority, then even though admission is thrown open to all very few students of other communities will take admission in such an educational institution. If the educational institution is giving general secular education, then the minority character of that institution does not get affected by having a majority of students from other communities. Even though the majority of students may be from other communities the institution will still be under the management of the minority. Further if the educational institution is a school, then the management will, in spite of Article 29(2), still be able to take a sizable number of students from their own community into the school. Article 29(2) precludes reservations on grounds of religion, race, caste or language. But it does not preclude giving of preference, if everything else is equal. Admission into schools generally are by interview. At this stage there is no common entrance test which determines merit. Undoubtedly children of the minority communities, contemplated by Article 30(1), would be as bright or capable as children of other communities. Thus whilst admitting at this stage preference can always be given to members of their own community so long as some students of other communities are also admitted and denial is not on basis of religion, race, caste, language or any of them. Thus for admissions in schools, Article 29(2) will pose no difficulty to minority institutions. However, Article 29(2) will require, if State aid is taken, that admissions into college, either under graduate or post graduate and admission into professional course, be not denied to any citizen on grounds of religion, race, caste, language or any of them. This would mean that admissions must be on merit from the common entrance test prescribed by the University or State. Here also if two students have equal merit, preference can be given to a student of their own community. Also Article 29(2) does not preclude minority (or even other educational institutions) admitting or denying admission on grounds other than religion, race, caste, language or any of them. Thus e.g. preferential admission could be given to those students who are willing to serve the community or work in a particular region, for a particular period of time after passing out. Also in such cases marks not exceeding 15% can be allotted for interviews. This will ensure that a sufficient number of students of their own community are admitted. More importantly there is no reason to believe that students of these minority communities will not be able to compete on merit. A sizable number will be available on merit also.
38. Most importantly we are interpreting the Constitution. As the language of
Articles 29(2) and 30 is clear and unambiguous the Court has to give effect to it, irrespective of the consequences. This is all the more necessary as the same is in consonance with the intention of the framers. Court cannot give an interpretation which creates a clash where none exits. Court cannot add words which the framers purposely omitted to use/add. Courts cannot give an interpretation, not supported by a plain reading, on considerations, such as minority educational institutions not being able to admit their own students. To be remembered that there is no compulsion to receive State aid. As was mentioned during the Constituent Assembly Debates the management can refuse to take aid. But if they choose to take State aid, then even a minority educational institution must abide by the Constitutional mandate of Article 29(2) just as they have to comply with the Constitutional mandate of Article 28(2) and comply with general secular laws of the country.
39. Thus looked at either from the historical point of view and/or the intention of the framers and/or from the contextual viewpoint and/or from principles of interpretation it is clear that Article 29(2) fully applies to Article 30. If a minority educational institute chooses to take State aid, it cannot then refuse to admit students on grounds of religion, race, case, language or any of them.
40. Now let us see whether the principles of "stare decisis" require us to take a different view. A large number of authorities have been cited and one has to consider these authorities.
41. The first case, which was decided as far back as on 9th April, 1951, was the case of The State of Madras v. Srimathi Champakam Dorairajan. It is reported in (1951) SCR 525. In this case the State of Madras was maintaining Engineering and Medical Colleges. In those colleges, for many years before the commencement of the Constitution, the seats used to be filled up in a proportion, set forth in what was called "the Communal G.O.". The allocation of seats was as follows:
"Non-Brahmin (Hindu) 6
Backward Hindus 2
Brahmins 2
Harijans 2
Anglo-Indians and Indian
Christians 1
Muslims 1"
After the Constitution was framed a Writ Petition under Article 226 came to be filed by Srimathi Champakam Dorairajan and one another in the High Court of Madras. She complained that this Communal G. O. affected her fundamental rights, inter alia, under Article 29(2). On behalf of the State it was argued that there was no discrimination and no infringement of fundamental rights. It was argued that it was the duty of the State to take care of and promote educational and economic interest of the weaker section of the people. It was argued that giving preferences and/or reservations did not violate Article 29(2). This argument was repelled and it was held as follows:
"It will be noticed that while Clause (1) protects the language, script or culture of a section of the citizens, Clause (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this article. But, on the other hand, if he has the academic qualifications but is refused admission only on ground of religion, race, caste, language or any of them, then there is a clear breach of his fundamental rights.
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Take the case of the petitioner Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin. He may have secured higher marks than the Anglo-Indian and Indian Christians or Muslim candidates but nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste.
It is argued that the petitioners are not denied admission only because they are Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmin are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom these reservations have been made. The classification in the Communal G.O. proceeds on the basis of the religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Article 29(2). In this view of the matter, we do not find it necessary to consider the effect of Articles 14 or 15 on the specific articles discussed above."
Thus as far back as in 1951 it has been held that Article 29(2) does not permit reservation in favour of any caste, community or class of people. An argument based on the word "only" in Article 29(2), to the effect that admitting students of their own community did not amount to refusing admission on grounds of religion, race, caste, language or any of them was rejected. Undoubtedly, this was a case pertaining to educational institutions maintained by the State. But the interpretation of Article 29(2) would remain the same even in respect of "educational institutions aided by the State". In all such institutions there can be no reservations based on religion, race, caste, language or any of them. The term "any educational Institution" in Article 29(2) would also include a minority educational institution under Article 30. Thus the interpretation of Article 29(2) would remain the same even in respect of a minority educational institution under Article 30(1).
42. In Champakam Dorairajan's case the reservations were not just for economically or socially backward communities. There were reservations for Anglo Indians, Indian Christians, Muslims, Brahmins and Non-Brahmins. After this Court struck down the reservation the framers of the Constitution amended Article 15 by adding Article 15(4) which reads as follows: "15(4). Nothing in this article or in Clause (2) of Article 29 shall prevent the 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 Scheduled Tribes."
Thus when the framers of the Constitution did not want Article 29(2) to apply they have specially so provided. Significantly no such amendment was made in Article 30(1) even though reservations in favour of minority communities was also held to be violative of Article 29(2).
43. In the case of the State of Bombay v. Bombay Education Society and Ors. reported in (1955) 1 SCC 568 an Anglo-Indian School, called Barnes High Court at Deolali, received aid from the State of Bombay. The State of Bombay issued a circular order on 6th January, 1954 which enjoined that no primary or secondary school could admit to a class where English is used as the medium of instruction, any pupil other than the pupil whose mother tongue was English. This was challenged in a Writ Petition under Article 226 in the High Court of Bombay. The Petition having been allowed, the State filed an Appeal to this Court. This Court held as follows: "Assuming, however, that under the impugned order a section of citizens, other than Anglo-Indian and citizens of non-Asiatic descent, whose language is English, may also get admission, even then citizens, whose language is not English, are certainly debarred by the order from admission to a School where English is used as a medium of instruction in all the classes. Article 29(2) ex facie puts no limitation or qualification on the expression "citizen". Therefore, the construction sought to be put upon Clause 5 does not apparently help the learned Attorney-General, for even on that construction the order will contravene the provisions of Article 29(2).
The learned Attorney-General then falls back upon two contentions to avoid the applicability of Article 29(2). In the first place he contends that Article 29(2) does not confer any fundamental right on all citizens generally but guarantees the rights of citizens of minority groups by providing that they must not be denied admission to educational institutions maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them and he refers us to the marginal note to the article. This is certainly a new contention put forward before us for the first time. It does not appear to have been specifically taken in the affidavits in opposition filed in the High Court and there is not indication in the judgment under appeal that it was advanced in this form before the High Court. Nor was this point specifically made a ground of appeal in the petition for leave to appeal to this Court. Apart from this, the contention appears to us to be devoid of merit. Article 29(1) gives protection to any section of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same. Article 30(1) secures to all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. Now suppose the State maintains an educational institution to help conserving the distinct language, script or culture of a section of the citizens or makes grants in aid to an educational institution established by a minority community based on religion or language to conserve their distinct language, script or culture, who can claim the protection of Article 29(2) in the matter of admission into any such institution? Surely the citizens of the very section whose language, script or culture is sought to be conserved by the institution or the citizens who belong to the very minority group which has established and is administering the institution, do not need any protection against themselves and therefore Article 29(2) is not designed for the protection of this section or this minority. Nor do we see any reason to limit Article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in Article 29(1) or Article 30(1), for the citizens, who do no belong to any minority group, may quite conceivably need this protection just as much as the citizens of such other minority groups. If it is urged that the citizens of the majority group are amply protected by Article 15 and do not require the protection of Article 29(2), then there are several obvious answers to that argument. The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or any body who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place Article 15 (SIC) quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which articles 29 and 30 are grouped together -- namely "Cultural and Educational Rights" -- is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, Irrespective of whether they belong to the majority or minority groups, are alike entitled to the protection of this fundamental right. In view of all these considerations the marginal note alone, on which the Attorney-General relies, cannot be read as controlling the plain meaning of the language in which Article 29(2) has been couched. Indeed in The State of Madras v. Srimathi Champakam Dorairajan [(1951) SCR 525], this Court has already held as follows: "It will be noticed that while Clause (1) protects the language, script or culture or a section of the citizens, Clause (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens."
In our judgment this part of the contention of the learned Attorney-General cannot be sustained." (emphasis supplied)
In this case it was also argued that the word "only" in Article 29(2) had to be given some meaning and that the circular order did not deny citizens admission only on ground of religion, race, caste, language or any of them. It was submitted that the object of the circular order was to secure advancement of Hindi which was ultimately to be the National language. It was submitted that thus there was no denial "only" on the ground of religion, race, caste, language or any of them. It was submitted that the denial was for the purposes of promoting the advancement of the national language and to facilitate imparting of education through the medium of the pupils mother tongue. this argument was repelled in the following terms: "Granting that the object of the impugned order before us was what is claimed for it by the learned Attorney-General, the question still remains as to how that object has been sought to be achieved. Obviously that is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School where the medium of instruction is English. Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil is not English. Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29(2) because the effect of the order involved an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language. The same principle is implicit in the decision of this Court in The State of Madras v. Srimathi Champakam Dorairajan [(1951) SCR 525]. There also the object of the impugned communal G.O. was to advance the interest of educationally backward classes of citizens but, that object notwithstanding, this Court struck down the order as unconstitutional because the modus operandi to achieve that object was directly based only on one of the forbidden grounds specified in the article. In our opinion the impugned order offends against the fundamental right guaranteed to all citizens by Article 29(2)."
It may be mentioned, even though not relevant for the purposes of this judgment, that in this case it has also been submitted that the rights under Article 30(1) are only for the purposes of conserving language, script or culture as set out in Article 29(1). This argument was also repelled by this Court.
44. Thus, as far back in 1955, a Constitution Bench of this Court has held that Article 29(2) is applicable to Article 30. It has been held that even in a minority educational institution all citizens of India are entitled to admission. It has been held that a citizen cannot be denied admission in a minority educational institution on ground "only" of religion, race, caste, language or any of them. To be noted that one of the petitions was from the Gujarati Hindu community and she was seeking admission into an Anglo-Indian School. Her right to be admitted was upheld. It has been categorically held that Article 29(2) applied to an Article 30 educational institute. The framers of the Constitution did not and have not amended the Constitution to provide otherwise.
45. In Re The Kerala Education Bill, 1957 reported in (1959) SCR 995, the President of India made a Reference under Article 143(1) of the Constitution of India for obtaining opinion of this Court upon certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill which had been passed by the Kerala Legislative Assembly, but had been reserved by the Governor for consideration of the President of India. The questions which were referred to this Court for consideration were as follows:
"(1) Does Sub-clause (5) of Clause 3 of the Kerala Education Bill, read with Clause 36 thereof, or any of the provisions of the said sub-clause, offend Article 14 of the Constitution in any particulars or to any extent? (2) Do Sub-clause (5) of Clause 3, Sub-clause (3) of Clause 8 and Clauses 9 to 13 of Kerala Education Bill, or any provision thereof, offend Clause (1) of Article 30 of the Constitution in any particulars or to any extent. (3) Does Clause 15 of the Kerala Education Bill, or any provisions thereof, offend Article 14 of the Constitution in any particulars or to any extent? (4) Does Clause 33 of the Kerala Education Bill, or any provisions thereof, offend Article 226 of the Constitution in any particulars or to any extent?"
46. Only question No.2 is relevant for our purposes. Whilst answering question No.2 this Court, inter alia, observed as follows: "Re. Question 2: Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head "Cultural and Educational Rights". The text and the marginal notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities. Under Clause (1) Article 29 and section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and though educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30(1) which has hereinbefore been quoted in full. This right, however, is subject to Clause 2 of Article 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
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The second proviso imposes the condition that at least 40 per cent of the annual admissions must be made available to the members of communities other than the Anglo- Indian community. Likewise Article 29(2) provides, inter alia, that no citizen shall be denied admission into any educational institution receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. These are the only constitutional limitations to the right of the Anglo-Indian educational institutions to receive aid. Learned counsel appearing for two Anglo-Indian schools contends that the State of Kerala is bound to implement the provisions of Article 337. Indeed it is stated in the statement of case filed by the State of Kerala that all Christian schools are aided by that State and, therefore, the Anglo-Indian schools, being also Chiristian schools, have been so far getting from the State of Kerala the grant that they are entitled to under Article 337. Their grievance is that by introducing this Bill the State of Kerala is now seeking to impose besides the constitutional limitations mentioned in the second proviso to Article 337 and Article 29(2), further and more onerous conditions on this grant to the Anglo-Indian educational institutions although their constitutional right to such grant still subsist." (emphasis supplied)
47. In this case it was argued on behalf of the State that as the minority instate received State aid it was bound, by virtue of Article 29(2), to admit students of all communities and thus did not retain its minority character. That Article 29(2) applied to a minority educational institute was not denied. The argument that, it lost its minority character because it admitted students of other communities, was repelled in the following terms.
"By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non- members of the particular minority community. In our opinion, it is not possible to read this condition into Article 30(1) of the Constitution." Thus even in this case it has been accepted and held that Article 26(2) applies to minority educational institutions established under Article 30. It has been held that merely because students of other communities are admitted, the institute does not lose its minority character. In this case it was also held that State can prescribe reasonable regulations. In this case regulations which provided for qualifications of teachers and which provided for State Public Service Commission to select teachers in aide schools were upheld. Thus even in this case it is accepted that Article 29(2) would govern Article 30(1).
48. In Rev. Sidharjbahi Sabhai v. State of Bombay, the petitioners belonged to the United Church of Northern India. They maintained educational institutions primarily for the benefit of the Christian community. Admittedly these institutions did not receive State aid. Therefore, the question of Article 29(2) and its applicability to Article 30 did not arise. On the contrary (as is set out on page 840 of the Report) it was an admitted position that these institutions did not deny admissions to students belonging to other communities. The Government of Bombay issued an order directing all private training colleges to reserve 60% of the seats for trainee teachers of the schools maintained by the Board. It was held that this Order violated rights under Article 30. All observations made in this case are in this context. They cannot be drawn out of context to hold that even where a minority institute receives aid the Constitutional mandate of Article 29(2) would not apply. In this case also it is held that the rights under Article 30(1) are subject to reasonable restrictions and regulations. It was held that restrictions in the interest of efficiency, discipline, health, sanitation, public order etc. could be imposed.
49. In Rev. Father W. Proost v. State of Bihar, the petitioners maintained St. Xavier's College which was affiliate to the Patan University. With effect form 1st March, 1962 Section 48-A was introduced. Under this Section a University Service Commission was established for affiliated colleges. Sub-clause (e) of Section 48-A provided that appointments, dismissals, removals, termination of service or deduction in rank teachers of an affiliated college should be made by the Governing body of the college on the recommendation of the Commission. Further, Sub-clause (11) provided that all disciplinary actions could be taken only in consultation with the Commission. The petitioners challenged the virus of the provision and claimed that it affected their rights under Article 30(1) of the Constitution. Whilst the Petition was pending in this Court; Section 48-B was introduced in the Bihar State Universities Act, which provided that appointments, dismissals, removals, termination of service or reduction in rank of teachers or disciplinary measures could only be taken with the approval of the Commission and the Syndicate of the University. This was also challenged. Thus in this case the interplay of Sections 29(2) and 30(1) did not come into questions at all. In this case it was an admitted position that the college was open to non-Catholics also. One of the arguments raised on behalf of the State was that since the admissions were not reserved only for students of the Jesuits community the college did not qualify for protection under Article 30(1). This argument was negatived by holding that merely because members of other communities were admitted to the institution did not mean the institution lost its minority character. This case thus shows that even if members of other community are admitted into the institution the institution would still remain a minority institution which is under the management of the minority.
50. In Rev. Bishop S.K. Patro v. State of Bihar, an educational institute was started by a Christian with the help of funds received from London Missionary Society. The question was whether the institute was not entitled to protection of Article 30(1) merely because funds were obtained from United Kingdom and the management was carried on by some persons who may not have been born in India. This Court held that rights under Article 29 could only be claimed by Indian citizens, but Article 30 guarantees the rights of minority. It was held that the said Article does not refer to citizenship as the qualification for members of the minority. This case therefore does not deal with the question of the interplay between Articles 29(2) and 30(1).
51. In the case of State of Kerala v. Very Rev. Mother Provincial reported in (1971) 1 SCR 734, the Constitutional validity of Sections 48, 49, 53, 56, 58 and 63 of the Kerala University Act was challenged as violation the rights under Section 30(1). In this case there is no discussion regarding the effect of Article 29(2) on Article 30. In this case also it was held that rights under Article 30(1) are subject to reasonable restrictions.
52. The case of D.A.V. College v. Punjab reported in (1971) Supp. SCR 677 does not deal with Article 29(2) and its effect on Article 30. In this case Punjabi was made the sole medium of instruction and examination under the Punjab University Act. It was held that this violated the rights under Article 29(1) as well as Article 30(1) inasmuch as the right to have an educational institution of a choice includes the right to have a choice of the medium of instruction also.
53. In the second case of D.A.V. College v. State of Punjab reported in (1971) Supp. SCR 688 the Dayanand Anglo Vedic College Trust was formed to perpetuate the memory of the founder of the Arya Samaj. It ran various institutions in the country. The collages managed and administered by the Trust were, before the Punjab Reorganisation Act, affiliated to the Punjab University. After the reorganisation of the State of Punjab in 1969, the Punjab Legislative passed the Guru Nank University (Amritsar) Act (21 of 1969). Colleges in the districts specified ceased to be affiliated to the Punjab University and were to be associated with and admitted to the privileges of the new university. Sub-section (2) of Section 4 of the Act provided that the university "shall make provision for study and research on the life and teaching of Guru Nanka and their cultural and religious impact in the context of Indian and World Civilisation; and Sub-section (3) enjoined the University "to promote studies to provide for research in Punjabi language and literature and to undertake measures for the development of Punjabi language, literature and culture". By Clause 2(1)(a) of the Statutes framed under the Act, the colleges were required to have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate including, among others, two representatives of the University and the principal of the College. Under Clause (1)(3) if these requirements were not complied with the affiliation was liable to be withdrawn. By Clause 18 the staff initially appointed were to be approved by the Vice Chancellor and subsequent changes had to be reported to the University for the Vice- Chancellor's approval. And by Clause 18 non- government colleges were to comply with the requirements laid down in the ordinance governing service and conduct of teachers. It was held that Clause 2(1)(a) interfered with the right of the religious minority to administer their educational institutions, but that Clause 18 did not suffer from the same vice. It was held that ordinances prescribing regulations governing the conditions of service and conduct of teachers must be considered to be one enacted in the larger interest of the institution to ensure their efficiency and excellence. It was similarly held that Sub- sections (2) and (3) of Section 4 do not offend any of the rights under Articles 29(1) and 30(1). It must be observed that, whilst dealing with the Articles 29 and 30, this Court observed as follows: "It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religious minority as well as linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them." (emphasis supplied)
54. Thus, even in 1971, this Court has held that Article 29(2) governs Article 30(1). The law laid down in Champakam Dorairajan's case, in Bombay Education Society's case and in Kerala Education Bill's case has been reaffirmed. Till this date no contrary view has been taken. Not a single case has held that rights under Article 30(1) would not be governed by Article 29(2).
55. The authority on which strong reliance has been placed by the counsel of the minority is St. Xaviers College's case (supra). St. Xaviers College was affiliated to the Gujarat University. A resolution was passe by the Senate of the University that all instruction, teaching and training in courses of studies in respect of which the University was competent to hold examinations shall be conducted by the university and shall be imported by teachers of the University. Section 5 of the Act provided that no educational institution situated within the University shall, save with the sanction of the State Government, be associated in any way with or seek admission to any privilege of any other University established by law. Section 33A(1)(a) of the Act provided that every College other than a Government College or a College maintained by the Government, shall be under the management of a governing body which included among others, the Principal of the College and a representative of the University nominated by the Vice-Chancellor. Section 33A(1)(b)(I) provided that in the case of recruitment of the Principal, a selection committee is required to be constituted consisting of, among others, a representatives of the University nominated by the Vice-Chancellor and (ii) in the case of selection of a member of the teaching staff of the College a selection committee consisting of the Principal and a representative of the university nominated by the Vice-Chancellor. Sub-section (3) of the Section stated that the provisions of Sub-section (1) of Section 33A shall be deemed to be a condition of affiliation of every college referred to in that sub-section. Section 39 provided that within the University area all post-graduate instruction, teaching and training shall be conducted by the University or by such affiliated College or institution and in such subjects as may be prescribed by statutes. Section 40(1) enacted that the Court of the University may determine that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall be conducted by the University and shall be imparted by the teachers of the University. Sub-section (2) of Section 40 stated that the State Government shall issue a notification declaring that the provisions of Section 41 shall come into force on such date as may be specified in the notification. Section 41(1) of the Act stated that all colleges within the University area which are admitted to the privilege of the university under Section 5(3) and all colleges within the said area which may hereafter be affiliated to the University shall be constituent colleges of the University. Sub-section (4) stated that the relations of the constituent colleges and other institutions within the University area shall be governed by statutes to be made in that behalf. Section 51A(a)(b) enacted that no member of the teaching other academic and non-teaching staff of an affiliated college shall be dismissed or removed or reduced in rank except after an enquiry in accordance with the procedure prescribed in Clause (a) and the penalty to be inflicted on him is approved by the Vice-Chancellor or any other Officer of the University authorised by the Vice-Chancellor in this behalf. Similarly Clause (b) of Sub-section (2) required that such termination should be approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf. Section 52A(1) enacted that any dispute between the governing body and any member of the teaching and other staff shall, on a request of the governing body or of the member concerned be referred to a tribunal of arbitration consisting of one member nominated by the governing body of the college, one member nominated by the member concerned and an umpire appointed by the Vice-Chancellor. The Petitioner Society contended that they had a fundamental right to establish and administer educational institutions of their choice and that such a right included the right of affiliation. They therefore challenged the constitutional validity of the above Sections. It is in this context that various observations have been made. These observations cannot be drawn out of context. In this case it was an admitted position, as set out by Justice Khanna, that children of all classes and creeds were admitted to the college provided they met the qualifying standards. Thus the College never claimed the right to only admit students of its own community. It acknowledged the fact that it had to admit students of all classes and creeds. The majority Judgment, therefore, did not deal with the question or interplay between Articles 29(2) and 30. Even though it did not deal with the interplay of Articles 29(2) and 30, it was clear that reasoning of the majority is based on the fact that the College did not deny admissions to the students of other communities. This is clearly indicated by the test which had been laid down by the majority. This test reads as follows:
"Such regulation must satisfy a dual test - the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it." (emphasis supplied)
Thus it is held by the majority that the institute is to be made an effective vehicle of education not just for the minority community but also for other persons who resort to do. This indicates that the majority made the observations on the understanding that admissions were not restricted only to students of minority community once State aid was received. This aspect is clearly brought out in the Judgment of Justice Dwivedi who, whilst dealing with the various provisions of the Constitution, held as follows:
"A glance at the context and scheme of Part III of the Constitution would show that the Constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. The associate Article 29(2) imposes one restriction on the right in Article 30(1). No religious or linguistic minority establishing and administering an educational institution which receives aid from the State funds shall deny admission to any citizen to the institution on grounds only of religion, race, caste, language or any of them. The right to admit a student to an educational institution is admittedly comprised in the right to administer it. This right is partly curtailed by Article 29(2).
The right of admission is further curtailed by Article 15(4) which provides an exception to Article 29(2). Article 15(4) enables the State to make any special provision for the advancement of any socially and educationally backward class of citizens or for the scheduled caste and scheduled tribes in the matter of admission in the educational institutions maintained by the State or receiving aid from the State.
Article 28(3) imposes a third restriction on the right in Article 30(1). It provides that no person attending any educational institution recognised or receiving aid by the State shall 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. Obviously, Article 28(3) prohibits a religious minority establishing and administering an educational institution which receives aid or is recognised by the State from compelling any citizen reading in the institution to receive religious instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart religious instruction in an educational institution forms part of the right to administer the institution. And yet Article 28(3) curtails that right to a certain extent.
To sum up Articles 29(2), 15(4) and 28(3) place certain express limitations on the right in Article 30(1). There are also certain implied limitations on this right. The right should be read subject to those implied limitations." (emphasis supplied)
Thus even in this authority the principle that Article 29(2) applies to Article 30(1) has been recognised and upheld. This case also holds that reasonable restrictions can be placed on the rights under Article 30(1) subject to the test set out hereinabove.
56. In the case of Gandhi Faizeam College v. Agra University reported in (1975) 3 SCR 810 the minority college was affiliated to the University of Agra. It applies for permission to start teaching in certain courses of study. The University, as a condition of permitting the additional subjects, insisted that the Managing Committee must be re-constituted in line with Statute 14-A which provided that the principal of the College and senior-most staff member should be part of the Managing Committee. The Petitioners filed a Writ Petition in the High Court challenging the imposition of such a condition on the ground that it was violative of their rights under Article 30(1). The High Court dismissed the Writ Petition. Therefore the Petitioners came to this Court. The majority of Judges upheld the order of the High Court, inter alia, on the ground that the right under Article 30(1) is not the absolute right and that it is a right which can be restricted. After considering the various authorities (including some of those set out hereinabove) it was held that reasonable regulations are desirable, necessary and constitutional, provided they shape but not cut out of shape the individual personality of the minority. It was held as follows:
"In all these cases administrative autonomy is imperilled transgressing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing, not restructuring, is prescribed. The core of the right is not gouged out at all and the regulation is at once reasonable and calculated to promote excellence of the institution - a text book instance of constitutional conditions."
Thus a condition that the Managing Committee be reconstituted is upheld. To be noted that the directly affects the right of administration. Now compulsory the principal and one of the staff members would be part of the Managing Committee. Yet it has been held that this is not violative of rights under Article 30(1).
57. In the case of St. Stephen's College v. University of Delhi, one of the questions was the applicability of Article 29(2) to Article 30(1). Even in this case it has been accepted that Article 29(2) applies to Section 30(1). However, the majority of the Judges, after noting that Article 29(2) applies to Article 30(1), sought to compromise and/or strike a balance between Articles 29(2) and 30(1). They therefore prescribed a ratio of 50% to be admitted on merits and 50% to be admitted by the College from their own community. All Counsel, whether appearing for the minorities or for the States/local authorities attacked this judgment and submitted that it is not correct. Of course Counsel for the minorities were claiming a right to admit students of their own community even to the extent of 100%. On the other hand the submission was that once State aid is taken Article 29(2) applied and not even a single student could be admitted on basis of religion, race, caste, language or any of them. Thus all counsel attacked the judgment as being not correct. In matters of interpretation, there can be no compromise. As stated above if the language and meaning are clear then Courts must give effect to it irrespective of the consequence. With the greatest of respect to the learned Judges concerned, once it was held that Article 29(2) applied to Article 30, there was no question of trying to balance rights or to seek a compromise.
58. Justice Kasliwal dissented from the majority view. It must be noted that in St. Stephen's case, in his minority judgment, he has held that Article 29(2) governs Article 30(1) and that if the minority educational institute chooses to take aid it must comply with the constitutional mandate of Article 29(2). The Judgment in St. Stephens case is of recent origin. It therefore cannot form the basis for applying the principles of "State Decisis".
59. Thus, from any point of view i.e. historical or contextual or on principles of pure interpretation or on principles of "stare decisis" the only interpretation possible is that the rights under Article 30(1) are conferred on minorities to establish and administer educational institutions of their choice at their own cost. The right is a special right which is given by way of protection so that the majority, which is politically powerful, does not prevent the minorities from establishing their educational institutions. This right was not created because the minorities were economically and socially backward or that their children would not be able to compete on merit with children of other communities. This right was not conferred in order to create a special category of the citizens. What has been granted to them is a right which was equal to the rights enjoyed by the majority community, namely, to establish and administer educational institutions of their choice at their own cost. As the institution was to be established and maintained at their own expense no right to receive aid has been conferred on the minority institute. All that Article 30(2) provides is that the State while granting aid would not discriminate merely on the ground that an educational institute was under the management of a minority. Article 30(2) has been so worded as the framers were aware that once State aid was taken some aspects of the right of administration would have to be compromised and given up. The minority educational institute have a choice. They need not take State aid. But if they choose to take State aid then they have to comply with constitutional mandates which are based on principles which are as important as if not more important than the rights given to the minorities. Our Constitution mandates that the State cannot discriminate on grounds only of religion, race, caste, language or any of them. Our Constitution mandates that all citizens are equal and that no citizen can be denied admission into 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. Thus if State aid is taken the minority educational institution must then not refuse admission to students of other communities on any of those grounds. In other words, they cannot then insist that they would admit students only of their community. Of course, as stated above, preferences could always be given to students of their own community. But preference necessarily implies that all other things are equal, i.e. that on merit the student of their community is equal to the merit of the student of other community. As stated above, in para 37, in schools the minority community would have a larger amount of leeway and so long as the school admits a sufficient number of outsiders Article 29(2) would not be violated if the refusal is not made on the basis of the religion, race, caste, language or any of them. Of course, at the under-graduate and post-graduate stages merit would have to be the criteria. At these stages there are common entrance examinations by which inter se merit can be assessed. But even here, the minority educational institute can admit students of its own community on grounds like those set out in para 37 above. They could give some preference to students coming from their own schools. There could be interviews wherein not more than 15% marks can be allotted. Students of their community will be able to compete on merit also. All these would ensure that a sufficient number of students of their own community receive admissions. But the minority institute, once it receives State aid, cannot refuse to abide by the constitutional mandate of Article 29(2). It would be paradoxical to unsettle settled law at such a late stage. It would be paradoxical to hold that the rights under Article 30(1) are subject to municipal and other laws, but that they are not subject to the constitutional mandate under Article 29(2). It would be paradoxical to held that Article 30(1) is subject to Article 28(3) but not to Article 29(2). It must be remembered that when Article 29(2) was introduced it was part of the same Article (viz. Article 23) which also included what is now Article 30(1). Not only the Constituent Assembly Debates but also the fact that they were part of the same Article shows that Article 29(2) was intended by the framers of the Constitution to apply even to institutions established under Article 30(1). Thus Article 29(2) governs educational institutions established under Article 30(1). The language is clear and unambiguous. It is clear that Article 30(1) has full play so long as the educational institution is established and maintained and administered by the minority at their own costs. Article 30(2) purposely and significantly does not make taking or granting of aid compulsory. The minority educational institution need not take aid. However, it is chooses to take aid then it can hardly claim that it would not abide by the Constitutional mandate of Article 29(2). Once the language is clear and unambiguous full effect must be given to Article 29(2) irrespective of the consequences. This can be the only interpretation. The only interplay between Articles 29(2) and 30(1) is that once State aid is taken, then students of all communities must be admitted. In others words, no citizen can be refused admission on grounds of religion, race, caste or creed or any of them. Reserving seats for students of one's own community would in effect be refusing admission on grounds of religion, race, caste, or creed. As there is no conflict the question of balancing rights under Article 30(1) and Article 29(2) of the Constitution does not arise. As stated by the US Supreme Court in the case of San Antonio Independent School District v. Demetrio P. Rudriguez (411 US 1), it is not the province of this Court to create substantive Constitutional rights in the name of guaranteeing equal protection.
60. In view of above discussion we answer the questions as follows: Q.1. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India?
A. 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. Q.2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.
Q.3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority? A. This question need not be answered by this Bench, it will be dealt with by a regular Bench.
Q.3(b) To what extent can professional education be treated as a matter coming under minorities rights under Article 30?
A. 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 professional educational institutions would be covered by Article 30.
Q.4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated? A. 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 regulator measures for ensuring educational standards and maintain exceptance thereof and it is more so, in the matter of admission 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.
Q.5(a) Whether the minority's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
A. 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.
Q.5(b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?
A. Further to what is stated in answer to question No. 4, it must be stated that 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. Q.5(c) Whether the statutory Provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of state employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets 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 un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed.
There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not restored to.
The extent of regulations will not be the same for aided and un-aided institutions.
Q.6(a) Where can minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.
Q.6(b) Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis-a-vis such institution?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.
Q.7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.
Q.8 Whether the ratio laid down by this Court in the St. Stephen's case (St. Stephen's College v. University of Delhi is correct? If no, what order?
A. The ratio laid down in St. Stephen's College case is not correct. Once State aid is taken and Article 29(2) comes into play, then no question arises of trying to balance Article 29(2) and 31. Article 29(2) must be given its full effect.
Q.9 Whether the decisions of this Court in Unni Krishnan J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan's case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.
Q.10 Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Article 14 and 15(1), in the same manner and to the same extent as minority institutions? and
Q.11 What is the meaning of the expressions "Education" and "Educational Institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A. The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The 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 Article 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, in the manner as discussed in this judgment.
Hon'ble Judge :
Syed Shah Mohammed Quddir on 25th November 2002 Gave reasons for concurring opinion in the judgment.
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