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A taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. 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 or colour of minority. A minority institution should shine in exemplary eclectism 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.

31. Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.

F 32. Education should be a great cohesive force in developing integrity of the nation. Education develops the ethos of the nation. Regulations are, therefore, necessary to see that there are no divisive or disintegrating forces in administration.” (Emphasis supplied) G 22.1.2 The conclusion arrived at by the learned Chief Justice was:- “45. For these reasons the provisions contained in Sections 40, 41, 33-A(1)(a), 33-A(1)(b), 51-A and 52-A cannot be applied to minority institutions. These provisions violate the fundamental rights of the minority institutions. H

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46. 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.

47. 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. C

48. The teachers and the taught form a world of their own where everybody is a votary of learning. They should not be made to know any distinction. Their harmony rests on dedicated and disciplined pursuit of learning. The areas of administration of minorities should be adjusted to concentrate on making learning D most excellent. That is possible only when all institutions follow the motto that the institutions are places for worship of learning by the students and the teachers together irrespective of any denomination and distinction.” (Emphasis supplied) E

22.2 While agreeing with the view taken by the learned Chief Justice with respect to aforestated provisions, Jaganmohan Reddy J., speaking for himself and Alagiriswami J., also juxtaposed provisions in various statutes which had come up for consideration before this Court from time to time. As regards the opinion in Re: The Kerala Education F Bill, 19579, it was observed:- “The scope and ambit of the rights under Articles 29(1) and 30(1) were first considered and analysed by this Court while giving its advice on the Presidential Reference under Article 143 of the Constitution in Re the Kerala Education Bill, 1957. The report G which was made to the President in that Reference, it is true, is not binding on this Court in any subsequent matter wherein in a concrete case the in fringement of the rights under any analogous provision may be called in question, though it is entitled to great weight. Under Article 143 this Court expresses its opinion if it so H

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A chooses and in some cases it might even decline to express its opinion, vide In Re Levy of Estate Duty12 cited with approval by Das, C.J. in In re The Kerala Education Bill, 1957. In some cases the opinion may be based on certain stated contingencies or on some assumed or hypothetical situations whereas in a concrete case coming before this Court by way of an appeal under B Article 133, or by special leave under Article 136 or by a petition under Article 32, the law declared by it by virtue of Article 141 is binding on all courts within the territory of India. Nonetheless the exposition of the various facets of the rights under Article 29(1) and Article 30(1) by Das, C.J. speaking for the majority, with the utmost clarity, great perspicuity and wisdom has been the text from which this Court has drawn its sustenance in its subsequent decisions. To the extent that this Court has applied these principles to concrete cases there can be no question of there being any conflict with what has been observed by Das, C.J. The decisions rendered on analogous provisions as those that are under challenge in this case would prima facie govern these cases, unless this larger Bench chooses to differ from them.” 22.3 Khanna, J. in his concurring opinion, considered the extent to which regulations could be prescribed, as under:- E “90. We may now deal with the scope and ambit of the right guaranteed by clause (1) of Article 30. The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer educational instructions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article F 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so G designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy

12 1944 FCR 317 H

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surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations 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 [see observations of Shah, J. in Rev. Sidhajbhai Sabhai10 p. 850]. Further as observed by Hidyatullah, C.J. in the case of Very Rev. C Mother Provincial4 the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations they must be followed, subject, however, to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.

91. It is, in my opinion, permissible to make regulations for ensuring the regular payment of salaries before a particular date of the month. Regulations may well provide that the funds of the institution should be spent for the purposes of education or for the betterment of the institution and not for extraneous purposes. Regulations may also contain provisions to prevent the diversion of funds of institutions to the pockets of those incharge of management or their embezzlement in any other manner. Provisions for audit of the accounts of the institution would be permissible regulation. Likewise, regulations may provide that no anti-national activity would be permitted in the educational institutions and that those employed as members of the staff should not have been guilty of H

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A any activities against the national interest. Minorities are as much part of the nation as the majority, and anything that impinges upon national interest must necessarily in its ultimate operation affect the interests of all those who inhabit this vast land irrespective of the fact whether they belong to the majority or minority sections of the population. It is, therefore, as much in the interest of B minorities as that of the majority to ensure that the protection afforded to minority institutions is not used as a cloak for doing something which is subversive of national interests. Regulations to prevent anti-national activities in educational institutions can, therefore, be considered to be reasonable.

C 92. A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend clause (1) of Article 30. At the sametime it has to be ensured that under the power of making regulations nothing is done as would detract from the character of the institution as a minority educational D institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as E a regulation. As observed by this Court in the case of Rev. Sidhajbhai Sabhai, 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 minority institution effective as an F 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. G … … …

94. If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe regulations and insist that they should be complied

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with before it would grant affiliation or recognition to an educational institution. To deny the power of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition. Question then arises whether there is any limitation on the prescription of regulations for minority educational institutions. So far as this aspect is concerned, the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, 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 which embrace and reconcile the two objectives can be considered to be reasonable. … … … E

103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority’s choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State F and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are 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 G educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). In the case of Rev. Father W. Proost11 this Court while dealing with Section 48-A of the Bihar H

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A Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the Constitution. The provisions of that section have been referred to earlier. According B to the section, subject to the approval of University appointment, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service C Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission. D

104. In the case of D.A.V. College which was affiliated to the Guru Nanak University, Statute 17 framed under the Guru Nanak University (Amritsar) Act inter alia provided that the staff initially appointed shall be approved by the Vice-Chancellor and that all subsequent changes shall be reported to the University for Vice- E Chancellor’s approval. This Court held that Statute 17 interfered with the right of management of the petitioner colleges and, as such, offended Article 30(1).

105. Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations, in my opinion, can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Such a provision would also eliminate a potential cause of frustration amongst the teachers. Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate Article 30(1).”

H (Emphasis supplied)

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22.4 In his concurring view, Mathew, J. speaking for himself and A Chandrachud, J. (as the learned Chief Justice, then was) also dealt with the extent to which the regulations could be prescribed, as under:- “174. We find it impossible to subscribe to the proposition that State necessity is the criterion for deciding whether a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it thinks necessary to protect what in its view is in the interest of the State or society, the right under Article 30(1) will cease to be a fundamental right. It sounds paradoxical that a right which the Constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of State necessity as conceived by the majority would be to subvert the very purpose for which the right was given.

175. What then are the additional regulations which can legitimately be imposed upon an educational institution established and administered by a religious or linguistic minority which imparts general secular education and seeks recognition or affiliation?

176. Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but H

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A this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition; but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be border line cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, exhypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is H

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not conducive to the interests of the minority community and those persons who resort to it. … … …

182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice- Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them.” (Emphasis supplied) E 22.5 In his concurring opinion, Beg, J. (as the learned Chief Justice then was) however struck a slightly different chord. At the outset he stated:-

197. … … I would, however, like to point out that, as rights and duties are correlative, it follows, from the extent of this wider right of a minority under Article 30(1) to impart even general or non-denominational secular education to those who may not follow its culture or subscribe to its beliefs, that, when a minority Institution decides to enter this wider educational sphere of national education, it, by reason of this free choice itself, could be deemed to opt to adhere to the needs of the general pattern of such education in the country, at least whenever that choice is made in accordance with statutory provisions. Its choice to impart an education intended to give a secular orientation or character to its education necessarily entails its assent to the imperative needs of the choice made by the State about the kind of “secular” education which H

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A promotes national integration or the elevating objectives set out in the preamble to our Constitution, and the best way of giving it. If it is part of a minority’s rights to make such a choice it should also be part of its obligations, which necessarily follow from the choice, to adhere to the general pattern. The logical basis of such a choice is that the particular minority Institution, which chooses to impart B such general secular education, prefers that higher range of freedom where, according to the poet Rabindranath Tagore, “the narrow domestic walls” which constitute barriers between various sections of the nation will crumble and fall. … …” 22.5.1 In his view, third set of provisions namely Sections 51A C and 52A did not constitute any unreasonable encroachment on the essence of the rights under Article 30(1) of the Constitution. It was observed:- “212. Section 51-A of the Act appears to me to lay down general conditions for the dismissal, removal, reduction in rank and termination of services of members of the staff of all colleges to which it applies. Again, we have not to consider here either the wisdom or unwisdom of such a provision or the validity of any part of Section 51-A of the Act on the ground that it violates any fundamental right other than the ones conferred by Article 30(1) of the Constitution. If, as I have indicated above, a greater degree of interference with the right to administer or manage an institution can be held to be permissible as a logical consequence of the exercise of an option of a minority for an institution governed by a statute, with all its benefits as well as disadvantages, it seems to me that provisions of Section 51-A do not constitute an unreasonable encroachment on the essence of rights of a minority institution protected by Article 30(1) of the Constitution which consists of freedom of choice. For similar reasons, I do not think that Section 52-A of the Act constitutes an infringement of the special minority rights under Article 30(1) of the Constitution when the institution opts for a statutory right which necessarily involves statutory restrictions. Of course, if these provisions could be held to be invalid on any grounds as against all affiliated colleges, whether they are administered by minorities or majorities in a State, they could be held to be invalid against the petitioning College too on those grounds. But, as I have already said, we are not concerned here with such grounds or questions at all.” H

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22.5.2 Beg, J., then considered all previous decisions of this Court A and made following observations:- “221. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. This may explain why “standards” of education were spoken as “not part of management” at all. It meant that the right to manage, having been conferred in absolute terms, could not be interfered with at all although the object of that management could be determined by a general pattern to be laid down by the State which could prescribe the syllabi and standards of education. Speaking for myself, I find it very difficult to separate the objects and standards of teaching from a right to determine who should teach and what their qualifications should be. Moreover, if the “standards of education” are not part of management, it is difficult to see how they are exceptions to the principle of freedom of management from control. Again, if what is aimed at directly is to be distinguished from an indirect effect of it, the security of tenure of teachers and provisions intended to ensure fair and equitable treatment for them by the management of an institution would also not be directly aimed at interference with its management. They could more properly be viewed as designed to improve and ensure the excellence of teachers available at the institution, and, therefore, to raise the general standard of education. I think that it is enough for us to distinguish this case on the ground that the provisions to be interpreted by us are different, although, speaking for myself, I feel bound to say, with great respect, that I am unable to accept every proposition found stated there as correct. In that case, the provisions of the Kerala University Act 9 of 1969, considered there were inescapable for the minority institutions which claimed the right to be free from their operation. As I have already observed, in the case before us, Section 38-B of the Act provides the petitioning College before us with a practically certain mode of escape from the compulsiveness of provisions other than G Sections 5, 40 and 41 of the Act if claims made on its behalf are correct. … … …

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A 229. It may be that Article 30(1) of the Constitution is a natural result of the feeling of insecurity entertained by the minorities which had to be dispelled by a guarantee which could not be reduced to a “teasing illusion”. But, is it anything more than an illusion to view the choice of a minority as to what it does with its educational institution as a matter of unconcern and indifference to the whole organised society which the State represents?” … … …

232. Even if Article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only to absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of regulation and control when a minority institution enters the wider sphere of general secular and non-denominational education, largely employs teachers who are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in management. In other words, the degree of reasonably permissible control must vary from situation to situation. For the reasons already given above, I think that, apart from Sections 5, 40 and 41 of the Act, which directly and unreasonably impinge upon the rights of the petitioning minority managed college, protected by Article 30(1) of the Constitution, I F do not think that the other provisions have that effect. On the situation under consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, a means of escape from the impugned provisions other than Sections 5, 40 and 41 of the Act by resorting to Section 38-B G of the Act.” 22.6 In his dissenting view, Dwivedi, J. expressed with regard to the extent of regulatory power as under:- “266. The extent of regulatory power of the State would vary according to various types of educational institutions established H

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by religious and linguistic minorities. Educational institutions may be classified in several ways: (1) According to the nature of instruction which is being imparted by the minorities. It may be religious, cultural and linguistic instruction or secular general education or mixed; (2) According to grant of aid and recognition by the State. Some institutions may receive aid; the others may not. Similarly, some institutions may receive recognition; the others may not. There may be some others which may receive both aid and recognition; some others may receive neither aid nor recognition. (3) According to the standard of secular general education which is being imparted in the institutions — primary, secondary and higher. (4) According to the nature of education such as military academy, marine engineering in which the State is vitally interested for various reasons.

267. The extent of regulatory power may vary from class to class as well as within a class. For instance, institutions receiving aid and recognition may be subject to greater regulation than those which receive neither. Similarly, institutions imparting secular general education may be subject to greater regulation than those which are imparting religious, cultural and linguistic instruction solely.

268. An educational institution would consist of: (1) the managing body of the institution, (2) teaching staff, (3) non-teaching staff, (4) students; and (5) property of various kinds. Here again, the extent of the regulatory power may vary from one constituent to another. For instance, the teaching staff and property may be subject to greater regulation than the composition of the managing body. Plainly, no minority educational institution can be singled out for treatment different from one meted out to the majority educational institution. A regulation meeting out such a discriminatory treatment will be obnoxious to Article 30(1).” 22.7 The operative part of the Order passed by this Court was:- G “304. By majority Sections 33-A, 40, 41, 51-A(1)(b), 51-A(2)(b) and 52-A of the Gujarat University Act, 1949 as amended do not apply to institutions established and administered by linguistic and religious minorities. … … …”

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23Copy pinpoint23. In The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Another 13, a Bench of three Judges of this Court considered whether Statute 14A framed by University of Agra infringed fundamental rights of the minority community under Article 30 of the Constitution. The facts as set out in para 3 were as under:- B “3. The appellant is a registered society formed by the members of the Muslim community at Shahjahanpur. Indubitably, the community ranks as a minority in the country and the educational institution run by it has been found to be what may loosely be called a “minority institution”, within the constitutional compass of Article 30. The earlier history of the institution need not detain C us and a rapid glance at its evolution is enough. The A.V. Middle School was the offspring of the effort of the Muslim minority resident in Shahjahanpur district. It, later became a high school and afterwards attained the status of an Intermediate college. Eventually it blossomed into a degree college affiliated to the D University of Agra. In 1948, on the assassination of the Father of the Nation, this college was commemoratively renamed as Gandhi Faiz-e-am College. In August 1964, an application was made on behalf of the college management to the University for permission to start teaching in courses of study including Sociology, Sanskrit, Arabic, Military Studies, Drawing and Painting. The University E entertained the thought that a new organisational discipline must be brought into the institution and insisted, as a condition of recognition of these additional subjects as course of study, on certain mutations in the administrative body of the college. The bone of contention before us, as was before the High Court, is that this F prescription by the University, in tune with Statute 14A framed by it, is an invasion of the fundamental right guaranteed to the minority community under Article 30 of the Constitution of India. The High Court has negatived the plea of the management and the appeal issues from that decision.” G 23.1 Statute 14A as quoted in para 6 was to the following effect:- “14A. Each college, already affiliated or when affiliated, which is not maintained exclusively by Government must be under the Management of a regular constituted Governing body (which term

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includes Managing Committee) on which the staff of the college shall be represented by the Principal of the college and at least one representative of the teachers of the college to be appointed by rotation in order of seniority determined by length of service in the college, who shall hold office for one academic year.” 23.2 Krishna Iyer, J. speaking for himself and Gupta, J. found the provision calculated to promote excellence of the Institution and therefore rejected the challenge. The relevant observations were:- “16. The discussion throws us back to a closer study of Statute 14A to see if it cuts into the flesh of the management’s right or merely tones up its health and habits. The two requirements the C University asks for are that the managing body (whatever its name) must take in (a) the Principal of the College; (b) its seniormost teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right? On a careful reflection and conscious of the constitutional dilemma, we are inclined to the view that this case falls on the valid side of the delicate line. Regulation which restricts is bad; but regulation which facilitates is good. Where does this fine distinction lie? No rigid formula is possible but a flexible test is feasible. Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authority’s fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedom. … … …

24Copy pinpoint24. 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.” H

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A 23.3. Mathew, J. authored a dissenting opinion. Relying upon various views expressed in Ahmedabad St. Xavier’s College5 including one rendered by the learned Judge himself, it was observed :- “41. The determination of the composition of the body to administer the educational institution established by a religious minority must be left to the minority as that is the core of the right to administer. Regulations to prevent maladministration by that body are permissible. As the right to determine the composition of the body which will administer the educational institution is the very essence of the right to administer guaranteed to the religious or linguistic minority under Article 30(1), any interference in that area by an outside authority cannot be anything but an abridgment of that right. The religious or linguistic minority must be given the freedom to constitute the agency through which it proposes to administer the educational institution established by it as that is what Article 30(1) guarantees. The right to shape its creation is one thing: the right to regulate the manner in which it would function after it has come into being is another. Regulations are permissible to prevent maladministration but they can only relate to the manner of administration after the body which is to administer has come into being.

E 42. The provisions of Statute 14A are in pari materia with those of Section 33-A(1)(a) of the Act which fell for consideration in Ahmedabad St. Xavier’s College case (supra) except that only the principal and the seniormost member of the staff alone are required to be included in the managing committee of the college in question here. But, in principle, that makes no difference. The F principle, as I said, is that the minority community has the exclusive right to vest the administration of the college in a body of its own choice, and any compulsion from an outside authority to include any other person in that body is an abridgment of its fundamental right to administer the educational institution.” G 23.4 In terms of the decision of the majority, the challenge was negated and Statute 14A was not found to be vulnerable or void.

24. In Lily Kurian v. Sr. Lewina and Others14, a Bench of five Judges of this Court was called upon to consider whether the appellate 14 H (1979) 2 SCC 124

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power conferred upon the Vice Chancellor of the University15 would encroach upon the rights of a minority institution to enforce and ensure discipline over its teachers. The matter was considered by this Court as under:- “51. An analysis of the judgments in St. Xaviers College case clearly shows that seven out of nine judges held that the provisions contained in clause (b) of sub-sections (1) and (2) of Section 51- A of the Act were not applicable to an educational institution established and managed by religious or linguistic minority as they interfere with the disciplinary control of the management over the staff of its educational institutions. The reasons given by the majority were that the power of the management to terminate the services of any member of the teaching or other academic and non-academic staff was based on the relationship between an employer and his employees and no encroachment could be made on this right to dispense with their services under the contract of employment, which was an integral part of the right to administer, and that these provisions conferred on the Vice-Chancellor or any other officer of the University authorised by him, uncanalised, unguided and unlimited power to veto the actions of the management. According to the majority view, the conferral of such blanket power on the Vice-Chancellor and his nominee was an infringement of the right of administration guaranteed under Article 30(1) to the minority institutions, religious and linguistic. The majority was accordingly of the view that the provisions contained in clause (b) of sub-sections (1) and (2) of Section 51- A of the Act had the effect of destroying the minority institution’s disciplinary control over the teaching and non-teaching staff of the college as no punishment could be inflicted by the management on a member of the staff unless it gets approval from an outside authority like the Vice-Chancellor or an officer of the University authorised by him. On the contrary, the two dissenting Judges were of the view that these provisions were permissive regulatory measures.

52. The power of appeal conferred on the Vice-Chancellor under Ordinance 33(4) is not only a grave encroachment on the 15 By Ordinance 33 against any order passed by the Management taking disciplinary action against a teacher. H

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A institution’s right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice-Chancellor is not defined, and, indeed, his powers are unlimited. The grounds on which the Vice-Chancellor can interfere in such appeals are also not defined. He may not only set aside an order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in Items (ii) to (v) of Ordinance 33(2), that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guide-lines, it cannot be held that the power of the Vice-Chancellor under Ordinance 33(4) was merely a check on maladministration.

53. As laid down by the majority in St. Xaviers College case, such a blanket power directly interferes with the disciplinary control of the managing body of a minority educational institution over its teachers. The majority decision in St. Xaviers College case squarely applies to the facts of the present case and accordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferral of such power on an outside authority like the Vice- Chancellor, which while maintaining the formal character of a E minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a “teasing illusion”, a “promise of F unreality”.

25Copy pinpoint25. In All Saints High School, Hyderabad and Others v. Government of Andhra Pradesh and Others16, the question that arose for consideration before a Bench of three Judges of this Court, was whether certain provisions of Andhra Pradesh Recognised Private G Educational Institutions (Control) Act, 1975 offended fundamental rights conferred on minorities by Article 30(1). In terms of Sections 3(1) and 3(2), no teacher employed in any private educational institution could be dismissed or removed or reduced in rank except with the prior approval of the competent authority; and in terms of Section 3(2) such approval 16 H (1980) 2 SCC 478

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could be granted if the competent authority was satisfied that there A were adequate and reasonable grounds. Section 3(3)(a) provided that no teacher could be placed under suspension except when an enquiry into the gross misconduct of such teacher was contemplated and as per terms of Section 3(3)(b), no suspension could remain in force for more than two months if the enquiry was not completed within that period. B 25.1. Chandrachud, C.J. agreed with Fazal Ali, J. that Sections 3(1) and 3(2) would offend Article 30(1) and as such could not be applied to minority institutions. The learned Chief Justice however did not agree with Faizal Ali, J. insofar as Sections 3(3)(a) and 3(3)(b) but agreed with Kailasam, J. to hold that those provisions did not offend Article 30(1). Faizal Ali, J. had found all the provisions to be invalid while Kailasam, J. C had found the concerned provisions to be valid and not violative of Article 30(1) of the Constitution.

26Copy pinpoint26. In Frank Anthony Public School Employees’ Assoication v. Union of India and others17 validity of Section 12 of Delhi School Education Act on the strength of which certain provisions of said Act D would not apply to an unaided minority school, was under challenge. It was submitted by the petitioners that the teachers and other employees working in an unaided school were entitled to same pay-scale, allowances and benefits as were enjoyed by persons employed in schools governed by the provisions of said Act and to the extent Section 12 excluded applicability of some of the provisions of the Act, said Section was hit by Article 14 of the Constitution. The argument raised on behalf of the institution was :- “14. … …the right to appoint members of staff being an undoubted right of the management and the right to stipulate their salaries and allowances etc. being part of their right to appoint, such right could not be taken away from the management of a minority institution.” 26.1 While allowing the petition this Court observed: “16. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other 17 (1986) 4 SCC 707 H

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A conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education. (Emphasis supplied) … … …

E 23. We must refer to the submissions of Mr Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely

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to “put the teachers in their proper place”. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised.”

27Copy pinpoint27. In Bihar State Madarasa Education Board, Patna v. B Madarasa Hanfia Arabic College, Jamalia and others 18 the declaration by the High Court that Section 7(2)(n) was unconstitutional as it conferred power on the Board to dissolve the Managing Committee of a Madarasa, was under challenge. The decision was upheld by this Court observing as under: C “6. The question which arises for consideration is whether Section 7(2)(n) which confers power on the Board to dissolve the Managing Committee of an aided and recognised Madarasa institution violates the minorities constitutional right to administer its educational institution according to their choice. This Court has all along held that though the minorities have right to establish and administer educational institution of their own choice but they have no right to maladminister and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have indirect effect on the absolute right of minorities but that would not violate Article 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions. The State has, however, no power to completely take over the management of a minority institution. Under the guise of regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender its right of administration. In State of Kerala v. Very Rev. Mother Provincial, Section 63(1) of the Kerala University Act, 1969 which conferred power on the government to take over the management of a minority institution on its default in carrying out the directions of the State Government G was declared ultra vires on the ground that the provisions interfered with the constitutional right of a minority to administer its institution. Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management 18 (1990) 1 SCC 428 H

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A but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving Managing Committee or by appointing ad hoc committees in place thereof. In the instant case Section 7(2)(n) is clearly violative of constitutional right of minorities under Article 30(1) of the Constitution insofar as it provides for dissolution of B Managing Committee of a Madarasa. We agree with the view taken by the High Court.”

28Copy pinpoint28. In St. Stephen’s College vs. University of Delhi19 a Bench of five Judges of this Court had an occasion to consider the admission process adopted by two aided minority institutions viz. St. Stephen’s C College at Delhi and Allahabad Agricultural Institute at Naini. The factual context as summed-up in the majority judgment authored by Shetty, J., was as under:- “68. It is not in dispute that St. Stephen’s College and Allahabad Agricultural Institute are receiving grant-in-aid from the government. St. Stephen’s College gives preference to Christian students. The Allahabad Agricultural Institute reserves 50 per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidsates with more merit are denied admission on the ground that they are not Christians.

69. It was argued for the University and the Students Union that since both the institutions are receiving State aid, the institutional preference for admission based on religion is violative of Article F 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For institutions, on the other hand, it was claimed that any preference given to the religious minority candidates in their own institutions cannot be a discrimination falling under Article 29(2). The institutions are established for the benefit of their community and if they are G prevented from admitting their community candidates, the purpose of establishing the institutions would be defeated. The minorities are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion

19 (1992) 1 SCC 558 H

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of all others and that right flows from the right to establish and administer educational institutions guaranteed under Article 30(1).” 28.1 The majority judgment dealt with the submissions raised by the institution as under:- “80. Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. 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 Education Bill that the minorities cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have contained the words “for their own community”. In the absence of such words it is legally impermissible to construe the article as conferring the right on the minorities to establish educational institution for their own benefit. D

81. 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.” G 28.2 The relaxation given by St. Stephen’s College to Christian students was dealt with as under:- “50. To Christian students, relaxation up to 10 per cent is given. The Scheduled Castes/Scheduled Tribes candidates who are having a minimum of 50 per cent of marks are called for interview for H

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A selection to Honours courses. For B.A. pass course, a further concession to them is granted and the qualifying marks are reduced even below 50 per cent. As far as sportsmen and sportswomen are concerned, national or State level players are given concession normally up to 10 per cent and in exceptional cases up to 15 per cent or even more. However, a Christian student, who is below B the cut-off percentage by more than 10 per cent is never called for interview.

51. The actual working of the concession given by the College and the result achieved thereon in several years are set out in Annexure I to Writ Petition No. 1868 of 1980. The Christian C students who get concession up to 10 per cent and thereby get preferential admission are only 6 per cent to 10 per cent. They are also admitted in accordance with the standard prescribed by the University and none who falls below the standard has ever been admitted to the College.” D 28.3 The majority Judgment, then, considered the matter from the perspective of “Rights of Minorities and Balancing Interest” and observed:- “101. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must E have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. In Sidhajbhai case10 the government order directing the minority run college to reserve 80 per cent of seats for government nominees and permitting only 20 F per cent of seats for the management with a threat to withhold the grant-in-aid and recognition was struck down by the Court as infringing the fundamental freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo-Indian community for ten years from the commencement of the Constitution. Unlike G Article 30(2) it conferred a positive right on the Anglo-Indian community to get grants from the government for their educational institutions, but subject to the condition that at least 40 per cent of annual admission were made available to members of other communities. H

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102. In the light of all these principles and factors, and in view of A 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 B 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 C of other community candidates shall be done purely on the basis of merit.” 28.4 It was also observed that regulations which serve the interest of students and teachers and preserve the uniformity in standards of education amongst the affiliated institutions could validly be made. The D relevant discussion in para 59 was as under:- “59. 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, labour 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 G 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)”. (Emphasis supplied) H

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A 28.5 The dissenting opinion of Kasliwal, J. quoted a passage from the Constituent Assembly Debates (CAD) touching upon the matter in issue as under :- “137. These were Articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution. Firstly, B Dr B.R. Ambedkar said in relation to draft Article 23(2) corresponding to the present Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said20: C “Now, with regard to the second clause I think it has not been sufficiently well understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such instruction, it shall not give instruction to, or make it compulsory upon, the children belonging to other communities unless and until they obtain the consent of the parents of these children. That, I think, is a salutary provision. It performs two functions… Shri H.V. Kamath: 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 G school run by the community for its own pupils? The Hon’ble 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 20 H VII CAD 884

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that it shall keep the school open to all communities. That provision A he has not read.”

138. He reaffirmed the freedom of the State to give or not to give aid to these schools when directly referring to draft Article 23 which is the precursor of the present Articles 29 and 30 as follows21: B “I think another thing which has to be borne in reading Article 23 is that it does not impose any obligation or burden upon the State. It does not say that, when for instance the Madras people come to Bombay, the Bombay Government shall be required by law to finance any project of giving education either in Tamil C language or in Andhra language or any other language. There is no burden cast upon the State. The only limitation that is imposed by Article 23 is that if there is a cultural minority which wants to preserve its language, its script and its culture, the State shall not by law impose upon it any other culture which may be either local or otherwise.” D

And, went on to observe that once an institution was receiving aid, “it must abide by the rigor of Article 29(2) in the matter of admission of students in the college” and “as already held by me, St. Stephen’s College and Allahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian E community as they are getting grant-in-aid and as such I do not consider it necessary to labour any more on the question of deciding as to what percentage can be considered as reasonable”

29Copy pinpoint29. We must also refer to two decisions of this Court after the decision in Ahmedabad St. Xaviers College5 where the appointment of F Principal of a minority educational institution was in question. 29.1 In Board of Secondary Education and Teachers Training v. Jt. Director of Public Instructions, Sagar and others22, a Bench of two Judges of this Court observed: G “3. The decisions of this Court make it clear that in the matter of appointment of the Principal, the management of a minority educational institution has a choice. It has been held that one of

21 VII CAD 923 22 (1998) 8 SCC 555 H

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A the incidents of the right to administer a minority educational institution is the selection of the Principal. Any rules which take away this right of the management have been held to be interfering with the right guaranteed by Article 30 of the Constitution. In this case, both Julius Prasad selected by the management and the third respondent are qualified and eligible for appointment as B Principal according to rules. The question is whether the management is not entitled to select a person of their choice. The decisions of this Court including the decision in State of Kerala v. Very Rev. Mother Provincial and Ahmedabad St. Xavier’s College Society v. State of Gujarat make it clear that this right of the minority educational institution cannot be taken away by any rules or regulations or by any enactment made by the State. We are, therefore, of the opinion that the High Court was not right in holding otherwise. The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. But in that process, the aforesaid right of the management cannot be taken away, even if the Government is giving hundred per cent grant. We need not go into any other question in this appeal.” (Emphasis supplied) E 29.2 In N. Ammad v. Manager, Emjay High School and others23 a Bench of two Judges of this Court, while dealing with the issue “whether the management of a minority school was free to choose and appoint any qualified person as Headmaster” observed as under: “18. Selection and appointment of Headmaster in a school (or F Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster G can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite

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many changes taking place in the structural patterns of education A over the years.

19. How important is the post of Headmaster of a school has been pithily stated by a Full Bench of the Kerala High Court in Aldo Maria Patroni v. E.C. Kesavan. Chief Justice M.S. Menon has, in a style which is inimitable, stated thus: B “The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon — except to the extent of prescribing the requisite qualifications and experience — cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right ‘a teasing illusion, a promise of unreality’.”

20. The importance of the key role which a Headmaster plays in the school cannot be better delineated than that. The nine-Judge Bench in the Ahmedabad St. Xavier’s College Society has highlighted the importance of the role of the Principal of a college. E In support of majority view in that decision K.K. Mathew, J. has observed thus: (SCC pp. 815-16, para 182) “182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and F its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution.” G

21. H.R. Khanna, J. has adopted a still broader view that even selection of teachers is of great importance in the right to manage a school. Learned Judge has stated thus: (SCC p. 789, para 103)

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A “The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1).”

B 22. Krishna Iyer, J. who dissented from the majority view in Gandhi Faiz-E-Am College v. University of Agra has, nevertheless, emphasised the importance of the post of the Principal in the following words: (SCC p. 293, para 21) “21. An activist principal is an asset in discharging these duties which are inextricably interlaced with academic functions. The principal is an invaluable insider — the Management’s own choice — not an outsider answerable to the Vice-Chancellor. He brings into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression of student-teacher aspirations and complaints which are so essential for the minority institution to achieve a happy marriage between individuality and excellence.”

23. Whatever is said about the importance of the post of Principal of a college vis-à-vis the administration of the institution would in pari materia apply to the Headmaster of a school with equal force.

24. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished.” (Emphasis supplied) B) Decision in TMA Pai Foundation

30Copy pinpoint30. A Bench of Eleven Judges was constituted to consider questions touching upon the rights of Minority Educational Institutions under Articles 29 and 30 of the Constitution. The reasons why the Bench of that strength was constituted were set out in brief in paragraph No.3 of the leading Judgment authored by Kirpal, C.J. as under:

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“3. The hearing of these cases has had a chequered history. Writ A Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of five 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 seven Judges. The questions framed were recast and on 6-2-1997, the Court directed that the matter be placed before a Bench of at least eleven 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 Seventh Schedule, the question of who would be regarded as a “minority” was required to be considered because the earlier case- law 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 19-3-1997, 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 — Kerala Education Bill, 1957, In Re and E Ahmedabad St. Xavier’s 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.”

31Copy pinpoint31. The Bench framed 11 questions. For the present discussion we are principally concerned with discussion relevant to question Nos.4 and 5. Under heading- “3. In case private institutions can be governmental regulations and if so, to what extent?”, the discussion was under various sub-headings. The first sub-heading was “private unaided non-minority educational institutions”. Under this sub-heading para 50 of the leading Judgment enumerated what “the right to establish and administer” comprises of, as under: H

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A “50. The right to establish and administer broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; B (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.” The other sub-headings were “private unaided professional colleges”, “private aided professional institutions (non-minority)” and “other aided institutions”. Since the discussion under these sub-headings as well as the next heading does not strictly deal with the matter in the context of minority educational institutions, we may turn to the next heading “5. To what extent can the rights of aided private minority institutions to administer be regulated?” 31.1. After discussing about the extent of right under Article 30 of the Constitution, the leading Judgment considered all the relevant cases on the point. The following paragraphs are noteworthy: “90. In the exercise of this right to conserve the language, script or culture, that section of the society can set up educational institutions. The right to establish and maintain educational 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 (sic not) refer to any educational institution established by anyone, but which is maintained by the State or receives aid out of State funds. In G 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.

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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? Does 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 bye-laws or health regulations? … … …

105. In Rev. Sidhajbhai Sabhai v. State of Bombay this Court had to consider the validity of an order issued by the Government D 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 petitioners, who belonged to the minority community, were, inter alia, running a training college for teachers, E 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 F 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 G 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 SCR pp. 849-50 as under:

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A “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 be 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.”

D 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 Kerala Education Bill, 1957 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 E regulation may be tested was sought to be laid down in Kerala Education Bill, 1957 case and, therefore, it was held in Sidhajbhai Sabhai 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 interest, were valid. In this connection it was further held at SCR pp. 856-57, 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 H

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educational institution, but of the public or the nation as a whole. A 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 interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be but a ‘teasing illusion’, a B 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 C 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 D Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai 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 E 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 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.” (Emphasis supplied) H

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A 31.2. The leading Judgment thereafter considered the decision of this Court in Ahmedabad St. Xavier’s College5, and while quoting certain passages therefrom, it was observed: “119. In a concurrent judgment, while noting (at SCC p. 770, para 73) that “clause (2) of Article 29 forbids the denial of B 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 them”, Khanna, J. then examined Article 30, and observed at SCR p. 222, as follows: (SCC p. 770, para 74) C “74. 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. Analysing that clause it would follow that the right which has been conferred by the clause is on 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 right 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 SCR p. 224, as follows: (SCC p. 772, para 77) H

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“77. The idea of giving some special rights to the minorities is A 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 B 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 those 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 SCR p. 234, as follows: (SCC p. 781, para 89) “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. F 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 G 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 H

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A 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 maladminister, 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 conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it”. (SCC p. 783, para 92) It was permissible for the authorities to prescribe 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

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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 Kerala Education Bill, 1957 case this Court had 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 SCC p. 792, Khanna, J., observed that in cases subsequent to the opinion in Kerala Education Bill, 1957 case9 this Court had held similar provisions as clause 11 and clause 12 to be violative of Article 30(1) (sic in the case) of the minority institutions. He then observed as follows: (SCC p. 792, para 109) “The opinion expressed by this Court in Re Kerala Education Bill, 1957 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, 1957 in this respect was hesitant and tentative and not a final view in the matter.” E

(Emphasis supplied) 31.3. After considering all the decisions, the matter was summed up as under: “135. We agree with the contention of the learned Solicitor-General F 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 minorities, which G would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it 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. H

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A 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 B 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).

C 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-à- 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. Xavier’s College case5 at SCR p. 192 that : (SCC p. 743, para 9) F “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.” G 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

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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.” (Emphasis supplied) 31.4. The matter was then considered in the context where aid was being received by the concerned minority institution and to what extent its autonomy in administration, could be curtailed or regulated. It was observed: “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 receive 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 F of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction 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 G 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 H