Judges: B.N. Kirpal C.J., G.B. Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi, Dr. Arijit Pasayat, V.N. Khare S.S.M. Quadri, Ruma Pal, S.N. Variava and Ashok Bhan

Facts:

There is a lack of quality education and adequate number of schools and colleges in India, that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. The grievance of the Appellant 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 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, 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.

Writ filed by the Islamic Academy of Education and connected petitions were placed before a Bench of 5 Judges of the Supreme Court. 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, the 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 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 first, because the earlier case laws related to the pre-amendment era, when education was only in the State List.

Issues:

(i) Is there a Fundamental Right to set up Educational Institution and if so, under which provision?

(ii) Whether Unni Krishnan's case require reconsideration?

(iii) Whether, there can be Government Regulations, in private institutions and, if so, to what extent?

(iv) 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?

(v) Whether the rights of aided private minority institutions to administer be regulated and to what extent?

Law:

Constitution of India - Article 19(g) - All citizens shall have the right, (g) to practise any profession, or to carry on any occupation, trade or business

Constitution of India - Article 30(1) - All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Constitution of India - Article 29(2) - 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.

Constitution of India - Article 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

Contentions

Appellant

(i) Constitution provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right is enshrined under Article 19(1)(g) and Article 26, while in the case of linguistic and religious minorities, this right was enshrined and protected by Article 30.

(ii) Private Educational Institutions should have full autonomy in their administration and the decision of the Court in Unni Krishnan, J.P. and Ors. v. State of Andhra Pradeshand Ors. 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.

(iii) 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, no condition which curtailed or took away the minority character of the institution while granting aid could be imposed.

(iv) Constitution in PartIII 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

(v) 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. 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.

Respondent

(i) Respondent agreed with the Appellants on the point that the Unni Krishnan decision required reconsideration, and that the private unaided educational institutions were entitled to greater autonomy.

(ii) 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. 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

Analysis

(i) Article 19(1)(g) employs four expressions: Profession, Occupation, Trade and Business. A Five Judge Bench in Sodan Singh and Ors. v. New Delhi Municipal, 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,"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.

B.N. Kirpal, C.J (Concurring)

(i) 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.

(ii) In Unni Krishnan's case, the 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. 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 education 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 as recruitment and conditions of service of teachers and staff.

Private Unaided Non-Minority Educational Institutions

(i) 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. 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.

Private Aided Professional Institutions (non-minority)

(i) 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. 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.

(ii) 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.

(iii) The insertion of Entry 25 into List III, post which, 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.

(iv) 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. It cannot be accepted 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. Right to administer does not include the right to mal-administer. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law.

(v) 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. 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. 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.

(vi) It cannot be said 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.

(vii) 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, the 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. the ratio of St. Stephen's, which has held the field for over a decade, though there were reservations in accepting the rigid percentage stipulated therein.

(viii) 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.

V.N. Khare, J (Concurring)

(i) 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.

S.N. Variava, J (Concurring)

(i) Educational Institution receiving State aid cannot claim to have complete autonomy in the matter of administration. The regulations made by the State, to a great extent, depend on the extent of the aid given to institutions including minority institutions. 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) 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.

(ii) 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.

(iii) 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.

S.S.M. Quadri, J. (Concurring) (dissenting as to Issue no. 5)

(i) The rights conferred in Article 19(1)(g) and Article 26(a) were made subject to the discipline of Articles 19(6) and 26 respectively, that no such limitations were to be found in Article 30 of the Constitution and held, no such limitation could be read in Article 30(1) by any process of interpretation, therefore, the right conferred under Article 30(1) would be absolute. This is, however, not to deny the power to the State to frame regulations in the interest of minority educational institutions with regard to excellence of standard of education and check mal-administration.

(ii) 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.

(iii) Government regulations cannot destroy the minority character of the institution or to make the right to establish and administer a mere illusion but to say that the right under Article 30 is not so absolute as to be above the law, would, amount to conferring supremacy to the ordinary law over the provisions of the Constitution which would be contrary to Article 13 of the Constitution, as the laws whether existing or made in exercise of power conferred by the Constitution have to be consistent with the provisions of the Constitution and Part III which includes Article 30 and not vice versa.

(iv) To create inroads into the constitutional protection granted to minority educational Institutions by forcing students of dominant groups of the choice of the State or agencies of the State for admission in such institutions in preference to the choice of minority educational institutions will amount to a clear violation of the right specifically guaranteed under Art. 30(1) of the Constitution and will turn the fundamental right into a promise of unreality which will be impermissible.

Ruma Pal, J (dissenting on Issue no. 5)

(i) The right to admit minority students to 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.Whereas if one reads Article 29(2) as subject to Article 30(1) then effect can be given to both. And it is the latter approach which is to be followed in the interpretation of constitutional provisions. In other words, as long as the minority educational institution is being run for the benefit of and catering to the needs of the members of that community under Article 30(1), Article 29(2) would not apply. But once the minority educational institution travels beyond the needs in the sense of requirements of its own community, at that stage it is no longer exercising rights of admission guaranteed under Article 30(1).

Conclusion:

(i) The right to set up an Educational Institution is enshrined under Article 19 (1) (g), Article 30 and Article 26 of the Constitution.

(ii) 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. The restrictions imposed by the scheme, in Unni Krishnan's case, made it difficult, if not impossible, for the educational institutions to run efficiently. The scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent are overruled.

(iii) 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.

(iv) 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.

(v) 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 citizen's rights under Article 29(2) are not infringed.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.

(vi) 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.

Important Precedents:

(i) In Re: Kerala Education Bill

(ii) Ahmedabad St. Xavier's College Society v. State of Gujarat

(iii) Sodan Singh and Others v. New Delhi Municipal Committee and Others.

(iv) Unni Krishnan, J.P. and Others v. State of Andhra Pradesh and Others.

(v) Mohini Jain v. State of Karnataka