2002 (10) TMI 739 - SC - Indian Laws

Minority educational institutions can prefer community members when self-funded but must admit non-discriminatorily when state-aided under Article 30(1) and 29(2)

TMA Pai Foundation & Ors. Versus State of Karnataka & Ors.

SC held that minority educational institutions have constitutional protection under Article 30(1) when self-funded, allowing preferential admission to ... Fundamental right to set up educational institutions - private unaided institutions can there be Government regulations - determining the existence of a religious or linguistic minority, in relation to Article 30 - 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 - Constitutional validity of the statutory provisions vis-- vis the rights under Articles 19(1)(g), Article 26, Article 29 and Article 30(1) - Reconsideration of the judgment in Unnikrishnan's case [1993 (2) TMI 326 - SUPREME COURT]. HELD THAT:- 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 if it 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 unambigious 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. 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. Admission of students to unaided minority educational institutions, viz., Schools where scope for merit based selection is practically nil, cannot be regulated by the State or the University (except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards). Right to admit students being an essential facet of right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right in respect of unaided minority institutions provided however that the admission to the unaided educational institutions is on transparent basis and the merit is the criteria. The right to administer, not being an absolute one, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof and it is more so, in the matter of admissions to undergraduate Colleges and professional institutions. The moment aid is received or taken by a minority educational institution it would be governed by Article 29(2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In other words it cannot then give preference to students of its own community. Observance of inter se merit amongst the applicants must be ensured. In the case of aided professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. 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. 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. So far as the statutory provisions regulating the facets of administration is concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to an University or Board have to be complied with, but in the matter of day-to-day Management, like appointment of staff, teaching and non-teaching and administrative control over them, the Management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the Management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff, Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to 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. 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. 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. Issues Involved:1. Fundamental right to set up educational institutions and its constitutional basis.2. Reconsideration of the judgment in Unnikrishnan's case.3. Extent of government regulations on private unaided institutions.4. Determining the unit for identifying religious or linguistic minorities under Article 30.5. Regulation of rights to administer aided minority institutions.Detailed Analysis:1. Fundamental Right to Set Up Educational Institutions:The judgment confirms that there is a fundamental right to set up educational institutions under Article 19(1)(g) and Article 30(1) of the Constitution. Article 30(1) specifically provides religious and linguistic minorities the right to establish and administer educational institutions of their choice. The right to establish and administer educational institutions is not absolute and is subject to reasonable regulations to ensure educational standards and prevent maladministration.2. Reconsideration of Unnikrishnan's Case:The judgment in Unnikrishnan's case, which imposed a scheme for admissions and fee structures in private unaided professional colleges, was found to be unreasonable and in need of reconsideration. The court observed that the scheme led to revenue shortfalls and cross-subsidization where poorer students paid more to subsidize affluent students. The judgment emphasizes that regulations must be minimal, and institutions should ensure that students from poorer sections get admission, possibly through scholarships or free seats.3. Government Regulations on Private Unaided Institutions:The court held that while private unaided institutions have autonomy, they are subject to minimal regulations to ensure transparency, merit-based admissions, and prevention of capitation fees and profiteering. The regulations must be reasonable and aimed at maintaining educational standards. The court clarified that the fee structure must enable institutions to break even and generate surplus for development.4. Determining the Unit for Identifying Minorities:The court concluded that the unit for determining the existence of a religious or linguistic minority in relation to Article 30 is the state and not the country as a whole. This means that minorities are to be identified based on their status within individual states.5. Regulation of Rights to Administer Aided Minority Institutions:The court emphasized that aided minority institutions cannot have unfettered freedom in administration. The state can impose conditions necessary for maintaining high educational standards and protecting the interests of teaching and non-teaching staff. These conditions include qualifications for teachers, service conditions, and ensuring non-discriminatory admissions as per Article 29(2), which mandates that no citizen shall be denied admission to any educational institution maintained or aided by the state on grounds of religion, race, caste, language, or any of them.Separate Judgments:Justice Khare agreed with the Chief Justice on categories 1 and 4 and provided separate reasoning for categories 4 and 5. The court reiterated that the rights under Article 30(1) are subject to Article 29(2) and that minority institutions receiving state aid cannot refuse admission based on religion, race, caste, language, or any of them. The court also noted that the principle of equality and secularism must prevail, and minority institutions must comply with these constitutional mandates when receiving state aid.Conclusion:The court's judgment provides a comprehensive analysis of the rights and regulations concerning minority educational institutions, emphasizing the balance between autonomy and regulatory oversight to ensure educational standards and non-discriminatory practices. The judgment reaffirms the applicability of Article 29(2) to Article 30(1) and the necessity for reasonable regulations to maintain the integrity and quality of education in minority institutions.