T.M.A. PAl FOUNDATION AND ORS. v. STATE OF KARNATAKA AND ORS.

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A discrimination; indeed, it begins with non-discrimination. Protection of interests and institutions and the advancement of opportunity are just as important. Differential treatment that distinguishes them from ~he majority is a must to preserve their basic characteristics."

129Copy pinpoint129. Dealing with the ~ubmission that in a secular democracy the B government could not be utilized to promote the interest of any particular community, and that the minority institution was not entitled to state aid as of right, this Court, at page 609, paragraph 87, held as follows:- ·~

"It is quite true that there is no entitlement to State grant for minority ··. educational institutions. There was only a stop~gap arrangement under c Article 337 for the Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from ·the State. But under Article 30(2), the State is under an obligation to ··'maintain equality of treatment in granting aid to educational • -. institutions. Minority institutions are not to be treated differently while D ... giving financial assistance. They are entitled to get the financial ~ ; assistance much the same way as the institutions of the majority · • communities." '· I

130Copy pinpoint130. It was further held that the state could lay down reasonable conditions for obtaining grant-in-aid and for its proper utilization, but that the E state had no power to compel minority institutions to give up their rights under. Article 30( 1). After referring to the Kerala Education Bill case and Sidhajbhai Sabhai's case, the Court observed at page 609, paragraph 88, as follows:-

"...... In the latter case this court observed at SCR pages 856-57 that F ~ 11 the regulation which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective r'l<·. minority educational institution. The regulation cannot change the character of the minority institution. Such regulations must satisfy a dual test; the test of reasonableness, and the test that it is regulative of the educational character of the institution. It must be conducive G to making the institution arid effective vehicle of education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30( 1) 'remain unaffected even after securing financial assistance from the government.''

131Copy pinpoint131. After referring to the following observations in D.A.V. College H

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case, A " .....The right of a religious or linguistic minority to establish and administer educational institutions of its choice under Article 30(1) is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Article 29(2), which provides that no citizen shalt be denied B admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them ......"

the learned Judges remarked at page 610 (para 91) that in the said case, the Court was not deciding the question that had arisen before them. C or

132Copy pinpoint132. According to the learned Judges, the question the interplay of Article 29(2) with Article 30(1) had arisen in th~t case (St. Stephen's case) for the first time, and had not been considered by the Court earlier; they observed that "we are on virgin soil, not on trodden ground". Dealing with the interplay of these two Articles, it was observed, at page 612, paragraph 96, as follows:-

"The collective minority right is required to be made functional and is not to be reduced to useless lumber. A meaningful right must be shaped, moulded and created under Article 30( 1), while at the same time affirming the right of individuals under Article 29(2). There is need to strike a balance between the two competing rights. It is necessary to mediate between Artic1e 29(2) and Article 30(1), between" letter and spirit of these articles, between traditions of the past.and the convenience of the present, between society's need for stability and its need for change." F

133Copy pinpoint133. The two competing rights are the right of the citizen not to be . denied admission granted under Article 29(2), and right of the religious or linguistic minority to administer and establish an institution of its choice granted under Article 30( 1). While treating Article 29(2) as a facet of equality, the Court gave a contextual interpretation to Articles 29(2) and 30(1) while G rejecting the extreme contentions on both sides, i.e., on behalf of the institutions that Art~cle 29(2) did not prevent a minority institution to preferably admit only members belonging to the minority community, and the contention on behalf of the State that Article 29(2) prohibited any preference in fav\lur of a minority community for whose benefit the institution was established. The H

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A Court concluded, at pages 613-14, para I 02, as follows:- ;

"In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational ' institutions are entitled to prefer their community candidates to B maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority in.>titutions shall make available at least 50 per cent of c the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit."

134._1f we keep these basic features, as highlighted in St. Stephen's D case, in vi~w, then the real purposes underlying Articles 29(2) and 30 can be better appreciated.

135Copy pinpoint135. We agree with the contention of the learned Solicitor General that the Constitution in Part Ill does not ~~ontain or give any absolute right. All rights con~etTed in Part Ill 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 rn inorities, which would er~able them to establish and administer educc.ttional institutions in a manner so as to be in conflict with the other Parts of the r:onstitl•.tion. We find it difficult to accept that in the establishm~nt and admini tration of educational institutions by the religious and linguistic minorit1 ·s, no law of the land, even the Constitution, is to apply to them.

136 Decisions of this Court have held that the right to administer does not includt. the right to mal-administer. It has also been held that the right to admmister 1S not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national inter~ ·st. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also - for example, laws relating to taxation, sanitation, social welfare, economic regulation, public ··~ order and m01 ality.

137Copy pinpoint137. It follows from the aforesaid decisions that even though the words

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA {KlRPAL, CJ.] 693 of Article 30(1) are unqualified, this Court has held that at least certain other A · 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 .I absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).

13 8. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xaviers College case, at page 192, that ''the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality. " In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.

139Copy pinpoint139. Like any other private r' 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 bt such as to whittle down the right under Article 30. H

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140Copy pinpoint140. We have now to address the question of whether Article 30 gives a right to ask for a grant or aid from the state, and secondly, if it does get aid, to examine to what extent its autonomy in administration, specifically in the matter of admission to the educational institution established by the community, can be curtailed or regulated.

141Copy pinpoint141. The grant of aid is not a constitutional imperative. Articl~ 337 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30( 1) illusory. The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what, then, is the meaning, scope and effect of Article 30(2)? Article 30(2) only means what it states, viz., that a minority ,.. institution shall not be discriminated against when aid to educational institutions is granted. In other words the state cannot, when it chooses· to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration. If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial would be completely invalid.

142Copy pinpoint142. The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. In ·other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it, subject to the fulfillment of the requisite criteria, and the state gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the state cannot be compelled to grant aid, but the receipt of aid cannot be a reason for altering the nature or character of the recipient educational institution.

143Copy pinpoint143. This means that the right under Article 30( 1) implies that any grant that is given by the state to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The

T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [KIRPAL, CJ.] 695

conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such B conditions would be valid if they are also imposed on other educational institutions receiving the grant.

144Copy pinpoint144. 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 C 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 D a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28( 1) does not state that it applies only to educational. E institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-minorities. Article 28(3) is the right of a person studying in a state recognized institution or in an educational institution receiving aid from state funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian's consent if such a person is a minor). Just as Article 28( 1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the state or receiving aid out of state funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any manner. It is difficult to accept this contention. If Article 28(1) and (3) apply to a minority institution that receives aid out of state funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article H

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A 28(3), Article 29(2) refers to. "any educational institution maintained by the State or receiving aid out of State funds". A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3)' would be applicable to an aided minority ·institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has, are also curtailed by Article 28( I) and 28(3). A minority educational institution has a right to impart religious . D instruction- this right is taken away by Article 28(1), if that minority institution is maintained wholly out of state funds. Similarly on receiving aid out of state funds or on being recognized by the state, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3).lfthe curtailment of the right to administer a minority institution E on receiving aid or being wholly maintained out of state funds as provided by Article 28 is valid, there is no reason why Article 29(2) should not be held to be applicable. There is nothing in the language of Article 28(1) and (3), Article 29(2) and Article 30 to suggest that, on receiving aid, Article 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the contention that the institutions covered by Article 30 are outside the injunction of Article F 29(2) cannot be accepted.

145Copy pinpoint145. What is the true scope an_d effect of Article 29(2)? Article 29(2) . is capable of two interpretations - one interpretation, which is put forth by the Solicitor General and the other counsel for the different States, is that a G minority institution rec~iving aid cannot deny admission to any citizen on the grounds of religion, race, caste, language or any of them. In other words, the minority institution, once it takes any aid, cannot make any reservation for ,; its own community or show a preference at the time of admission, i.e., if the: . educational institution was a private unaided minority institution, it is free to admit all stu4ents of its own community, but once aid is received, Article H 29(2) makes it obligatory on the institution not to deny admission to a citizen

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just because he does not belong to the minority community that has established the institution.

146Copy pinpoint146. The other interpretation that is put forth is that Article 29(2) is a protection against discrimination on the ground of religion, race, caste or language, and does not in any way come into play where the minority institution prefers students of its choice. To put it differently, denying admission, even though seats are available, on the ground of the applicant's religion, race, caste or language, is prohibited, but preferring students of minority groups does not violate Article 29(2).

147Copy pinpoint147. It is relevant to note that though Article 29 carries the head note C "Protection of interests of minorities" it does ·not use the expression "minorities" in its text. The original proposal of the Advisory Committee in the Constituent Assembly recommended the following:-

" "( 1) Minorities in every unit shall be protected in respect of their language, script and culture and no laws or regulations may be enacted D that may operate oppressively or prejudicially in this respect." [B. Siva Rao, "Select Documents" (1957) Vol. 2 page 281]

But after the clause was considered by the Drafting Committee on 1st November, 1947, it emerged with substitute of 'section of citizens' .[B. Siva Rao, Select Documents ( 1957) Vol.3, pages 525-26. Clause 23, E Draft Constitution]. It was explained that the intention had always been to use 'minority' in a wide sense, so as to include (for example) Maharashtrians who settled in Bengal. (7 C.A.D. pages 922-23)"

148Copy pinpoint148. Both Articles 29 and 30 fonn a part of the fundamental rights Chapter in Part III of th.e Constitution. Article 30 is confined to minorities, p be it religious or linguistic, and unlike Article 29(1 ), the right available under the said Article cannot be availed by any section of citizens. The main distinction between Article 29( 1) and Article 30( 1) is that in the fanner, the right is confined to conservation of language, script or culture. As was observed in the Father W. Proost case, the right given by Article 29(1) is fortified by Article 30(1 ), insofar as minorities are concerned. In the St Xaviers College G case, it was held that the right to establish an educational institution is not ·· confined to conservation of language, script or culture. When constitutional provisions are interpreted, it has to be borne in mind that the interpretation should be such as to further the object of their incorporation. They cannot be read in isolation and have to be read hannoniously to provide meaning anq .H

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A purpose. They cannot be interpreted in a manner that renders another provision redundant. If necessary, a purposive and hannonious interpretation should be given.

149Copy pinpoint149. Although the right to administer i.ncludes within it a right to grant admission to students of their choice under Article 30( l ), when such a minority institution is granted the facility of receiving grant-in-aid, Article 29(2) would apply, and necessarily, therefore, one of the rights of administration of the minoriti~s would be eroded to some extent. Article 30(2) is an injunction against the s·tate not to discriminate against the minority educational institution and prevent it from receiving aid on the ground that the institution is under the management of a minority. While, therefore, a minority educational institution receiving grant:.in-aid would not be completely outside the discipline of Article 29(2) of the Constitution, by no stretch of imagination can the rights guaranteed under Article 30( 1) be annihilated. It is in this context that some interplay between Article 29(2) and Article 30(1) is required. As observed quite aptly in St. Stephen's case "the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to' nullify the special right guaranteed to minorities in Article 30(1)." The word "only" used in Article 29(2) is of considerable significance and has been used for some avowed purpose. Denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on grounds of religion etc., but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30( l ). The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage. The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. Usually, at the school level, although it may be possible to fill up all the seats with students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with .the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under

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Article 29{2) are not subverted. It is for this reason that a variable percentage A of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantees enshrined in both Article 29(2) and Article 30 .

.· 150. At this stage, it will be appropriate to refer to the following observations of B.P. Jeevan Reddy, J., in Indra Sawhney v. Union of India B at and Ors., [1992] Supp. 3 SCC 215 page 657, paragraph 683, as follows:-

"Before we proce~d to deal with the question, we may be permitted to make a few observations: The questions arising herein are not only of great moment and consequence, they are also extremely delicate and sensitive. They represent complex problems of Indian society, wrapped and presented to us as constitutional and legal questions. On some of these questions, the decisions of this Court have not been unifonn. They speak with more than one voice. Several opposing points of view have been pressed upon us with equal force and passion and quite often with great emotion. We recognize that these viewpoints are held genuinely by the respective exponents. Each of them feels his own point of view is the only right one. We cannot, however, agree with all of them. We have to find - and we have tried our best to find - answers which according to us are the right ones constitutionally and legally. Though, we are sitting in a larger Bench, E we have kept in mind the relevance and significance of the principle of stare decisis. We are conscious of the fact that in law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it- unless, of course, there are compelling and strong reasons to depart from it. Where, however, such unifonnity is not found, we have tried to answer the question on principle keeping in mind the scheme and goat of our Constitution and the material placed before us."

151Copy pinpoint151. The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Court over a decade ago in the St. Stephen's College case. While upholding the procedure for admitting students, this Court also held that aided !llinority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the state may regulate the intake in this category with due H

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A regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen's endeavoured to strike a balance between the two Articles. Though we accept the ratio of St. Stephen's, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located, the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established.

152Copy pinpoint152. At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions. As the regulations to promote academic excellence and standards do not .. encroach upon the guaranteed rights under Article 30, the aided minority educational institutions can be required to observe inter se merit amongst the eligible minority applicants and passage of common entrance test by the candidates, where there is one, with regard to admissions in professional and non-professional colleges. If there is no such test, a rational method of assessing comparative merit has to be evolved. As regards the non-minority segment, admission may be on the basis of the common entrance test and counselling by a state agency. In the courses for which such a test and counselling are not in vogue, admission can be on the basis of relevant criteria for the determination of merit. It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats.

153Copy pinpoint153. We would, however, like to clarify one important aspect at this stage. The aided linguistic minority educational institution is given the right to admit students belonging to the linguistic minority to a reasonable extent only to ensure that its minority character is preserved and that the objective of establishing the institution is not defeated. If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the state in which the institution is located have to be necessarily admitted

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [K1RPAL, CJ.] 701

in a large measure because they constitute the linguistic minority group as far as that state is concerned. In other words, the predominance of linguistic students hailing from the state in which the minority educational institution is established should be present. The management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining state in which they are in a majority, under the facade of the protection given under Article 30(1). If not, the very objective of conferring the preferential right of admission by hannoniously constructing Articles 30(1) and 29(2), which we have done above, may be distorted.

154Copy pinpoint154. We are rightly proud of being the largest democracy in the world. The essential ingredient of democracy is the will and the right of the people to elect their representatives from amongst whom a government is formed.

155Copy pinpoint155. It will be wrong to presume that the government or the legislature will act against the Constitution or contrary to the public or national interest at all times. Viewing every action of the government with skepticism, and 1 with the belief that it must be invalid unless proved otherwise, goes against the democratic form of government. It is no doubt true that the Court has the pow.er and the function to see that no one including the government acts contrary to the law, but the cardinal principle of our jurisprudence is that it is for the person who alleges that the law has been violated to prove it to be so. In such an event, the action of the government or the authority may .have to be carefully examined, but it is improper to proc~ed on the assumption . that, merely because an allegation is made, the action impugned or taken must be bad in law. Such being the position, when the government frames rules and regulations or lays down nonns, especially with regard to education, one must assume that unless shown otherwise, the action taken is in accordance with law. Therefore, it will not be in order to so interpret a Constitution, and F Articles 29 and 30 in particular, on the presumption that the state will normally not act in the interest of the general public or in the interests of concerned sections of the society.

CONCLUSION G Equality and Secularism

156Copy pinpoint156. Our country is often depicted as a pers.on in the form of "Bharat Mata- Mother India". The people of India are regarded as her children with their welfare being in her heart. Like any loving mother, the welfare of the H

702 SUPREME COURT REPORTS [2002J SUPP. 3 S.C.R.

·A family is of..paramount importance for her.

157Copy pinpoint157. .For a healthy family, it is· important that each member is strong and healthy. But then, all members do not have the same constitution, whether physical and/or mental. For harmonious and healthy growth, it is but natural for the parents, and the mother in particular, to give more attention and food B to the weaker child so as to help him/her become stronger. Giving extra food . and attention and ensuring private tuition to help in his/her•studies will, in a sense, amount to giving the weaker child preferential treatment. Just as lending physical support to the aged and the infirm, or providing a special diet, cannot be regarded as unfair or unjust, similarly, conferring certain rights on C a special class, for good reasons, cannot be considered inequitable. All the people of India are not alike, and that is why preferential treatment to a · special section of the society is not frowned upon. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instill in them a sense of security and confidence, even though the minorities cannot be per se regarded as weaker sections or D underprivileged segments of the society.

158Copy pinpoint158. The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub-castes; eighteen major languages and I ,600 minor languages and dialects. E The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the sma11 pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, ~hich has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in F the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India. Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different 0 shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.

159Copy pinpoint159. Each of the people oflndia has an important place in the formation of the nation .. Each piece has to retain its own colour. By itself, it may be an H insignificant stone, but when placed in a proper manner, goes into the making

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA (KIRPAL, CJ.} 703 of a full picture of India in all its different colours and hues. A

160Copy pinpoint160. A citizen of India stands in a similar position. The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the mak~ng of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces.

161Copy pinpoint161. The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more th~ seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.

ANSWERS TO ELEVEN QUESTIONS: D Q. 1. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India? A. Linguistic and religious minorities are covered by the expression "minority'' under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, E therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State·wise. Q. 2. What is meant by the expression "religion" in Article 30( 1)? F Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State? A. This question need not be answered by this Bench; it will be G dealt with by a regular Bench. Q. 3 (a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic H

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A minority or its being administered by a person(s) belonging to a religious or linguistic minority? · A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q. 3. (b) To what extent can professional education be treated as a B matter coming under minorities rights under Article 30? A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article c 30. Q. 4. Whether the admission of students to minority educational • I institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated? D A. Admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or University, except .for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.

The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. G A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under H Article 30(1) are not substantially impaired and further the citizens' rights

T.M.A. PAl FOUNDATION 'II. STATE OFKARNATAKA [KIRPAL, CJ.] 705

under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The concerned State Government has to notify the percentage of the non·minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case cf aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission. As regards non-minority students who are e1igible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the state agency followed by counselling wherever it exists. C Q. 5. {a) Whether the minority's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. Q. 5. {b) Whether the minority institutionst right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? A. While giving aid to professional institutions, it would be pennissible for the authority giving aid to prescribe by·rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non·minority students. The merit may be detennined either through a common entrance test conducted by the concerned University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the government to decide. The authority H

706 SUPREME COURT REPORTS {2002J SUPP. 3 S.C.R.

A may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society.

B · Q. 5. (c) Whether the statutory provisions which. regulate the facets · ·- of ad~inistration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service con.ditions and regulation of fees, etc. would interfere with the c right of administration of minorities? . A. So far as the statutory provisions regulating the facets of '' administration are concerned, in case of an unaided minority ' educational institution, the regulatory measure of control should · be minimal and the conditions of recognition as well as the . .I D ·'· conditions of affiliation to an university or board have to be ·~ complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved .by the management itself. ' fqr redressing the grievances of employees of aided and unaided in_stitutions who are subjected to punishment or tennination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge. ~e State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, · without interfering with the overall administrative control of the H

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 707

management over the staff. .A Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee. Q. 6. (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational B institution grant preferential admission/reservations and other benefits to members of the religious/linguistic . group from . other· States where they are non-minorities? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. C Q. 6. (b) Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis-a-vis such institution? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. D Q. 7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State? A. This question need not be answered by this Bench; it will be E dealt with by a regular Bench. ~

Q. 8. Whether the ratio laid down by this Court in the St. Stephen's case (St. Stephen's College v. University of Delhi, [1992] 1 SCC 558 is correct? If no, what order? A. The basic ratio laid do~n by this Court in the St. Stephen's F College case is correct, as indicated in this judgment. However,· rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities. Q. 9. Whether the decision of this Court in Unni Krishnan J.P. v. G State of A.P., [1993] l SCC 645 (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what? A. The scheme framed by this Court in Unni Krishnan's case and the direction to impose the same, except where it holds that H

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A primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. B Q. } 0. Whether the non-minorities have the right to establish and administer educational institution under Articles 2 I and 29(1) read with Articles 14 and 15( 1), in the same manner and to the same extent as minority institutions? and Q. 11. What is the meaning of the expressions "Education" and c "Educational Institutions" in various provisions of the Constitution? Is the right to establish and administer educational . institutions guaranteed under the Constitution? ' A. '1 The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level upto the post-graduate level. It includes professional D education. The expression "educational institutions" means institutions that impart education, where "education" is as · understood hereinabove. The right to establish and administer educational institutions is ·guaranteed under the Constitution to all citizens under Articles E 19(1 )(g) and 26, and to minorities specifically under Article 30.

All ~itizens have a right to establish and administer educational institutions under Articles 19(1 )(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.

V.N. KHARE, J. It is interesting to note that Shri K.M. Munshi, one of the members of the Constituent Assembly while intervening in the debate . in the Constituent Assembly with regard to the kind of religious education to be given in governmental aided institution stated thus: "if the proposed amendment is accepted, the matter has to be taken to Supreme Court and eleven worthy Judges have to decide whether the kind of education given is of a particular religion or in the nature of elementary philosophy of comparative religion. Then, after having decided that, the second point which the learned Judges will have to

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE,J.} 709 direct their attention to will be whether this elementary philosophy is calculated to broaden the minds of the pupils or to narrow their minds. Then they will have to decide upon the scope of every word, this being a justiciable right which has to be adjudicated upon by them. I have no doubt members of my profession will be very glad to throw considerable light on what is and is not a justiciable right of this nature (A Member: For a fee). Yes, .for very good fee too." (See Constitutional Assembly Debates Official Report. Reprinted by Lok Sahha Secretariat)

It may be noted that at the time when the Constituent Assembly was framing the Constitution of India the strength of Judges of Supreme Court C was not contemplated as eleven Judges. It appears what Shri Munshi stated was prophetic or a mere co-incidence. Today eleven Judges of the Supreme Court have assembled to decide the question of rights of the minorities.

Question No. 1. What is the meaning and content of the expression of ''minorities in Article 30 of the Constitution of India? D The first question that is required to be answered by this Bench is who is a minority. The expression "minority" has been derived from the Latin word "minor'' and the suffix "ity" which means "small in number". According to Encyclopaedia Britannica 'minorities' means "groups held together by ties of common descent, language or religious faith and feeling different in these E respects from the majority of the inhabitants of a given political entity". J.A. Laponce in his book "The Protection to Minoriti' describes 'Minority' as a group of persons having different race, language or religion from that of majority of inhabitants. In the Year Book on Human Rights U.N. Publication 1950 ed. minority has been described as non dominant groups having different F J religion or linguistic traditions than the majority population.

The expression minority has not been defined in the Constitution. As a matt"'r of fact when Constitution was being drafted Shri T.T. Krishanamachari J one of the members of the Constituent Assembly proposed an amendment which runs as under: G "That in Part XVI of the Constitution, for the word "minorities" where it occurs, the word "certain classes" be substituted".

We find that expression 'minorities' has been employed only at four places in the Constitution of India. Head note of Article 29 uses the word H

710 SUPREME cqURT REPORTS [2002) SUPP. 3 S.C.R.

A minorities. Then again the expressions Minorities or minority have been employed in head note of Article 30 and sub clauses (l) and. (2) of Article

30. However, omission to define minorities in the Constitution does not mean that the employment of words 'minorities' or 'minority' in Article 30 is of less significance. At this stage it may be noted that the expression 'minorities' B has· been used in Article 30 in two senses - one based on religion and other on basis of language. However prior to coming into force of the Constitution the expression minority was understood in terms of a class based on religion having different electorates. When India attained freedom, the framers pf the Constitution threw away the idea of having separate electorates basFd on rt:ligion and decided to have a system of joint electorates so that every candidate in an election would have to seek support of all sections of the constituency. In tum special safeguards were provided to minorities and they were made part of Chapter Ill of the Constitution with a view to instill a sense .of confidence and security to the minorities.

But the question arises what is the test to detennine minori~. status based on religion or language of a group of persons residing in a St~te or Union Territory. Whether minority status of a given group of persons lias to be determined in relation to the population of the whole of India or population of the. State where the said group of persons is residing. When the Consti~tion of India was being framed it was decided that India would be Union of States E and Constitution to be adopted would be of federal character. India is a country where many ethnic or religious and multi language people reside. Shri K.M. Munshi one of tl}e members of Constituent Assembly in his Note and Draft Article on (Right to Religion and Cultural Freedom) referred to minorities as national minorities. The said draft Article VI (3) runs as under: ·1,;~.

F "(3) Citizens belonging to national minorities in a State whether based on religion or language have equal rights with other citizens in forming, controlling and administering at their own expense; charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religions."

G Dr. B.R. Ambedkar while intervening in debate in regard to amendment to· draft Article 23 which related to the rights of religious and linguistic · minorities stated that "the term 'minority' was used therein not in the technical sense of the word minority as we have been accustomed to use it for purposes of certain political safeguards, such as representation in the legislature, represe.ntation in the services an~ so on". According to him, the word minority

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 711

is used not merely to indicate, the minority in technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense but which are nonetheless minorities in the cultural and linguistic sense. Dr. Ambedkar cited following example which runs as under: ·' "For instance, for the purposes of this Article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities. Similarly, if a certain number of Maharashtrians went from Maharashtra and settled in Bengal, although they may not be minorities in technical true sense, they would be cultural and linguistic minorities in Bengal. C The Article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the term as I have explained just now. That is the'ieason why we dropped the word minority because we felt that the word might be interpreted in the narrow sense of the term when D the Intention of this House, when it passed article 18, was to use the word "minority" in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless." (See Constitutional Assembly Debates Official Report reprinted by Lok Sabha Secretariat) E The draft article and the Constituent Assembly Debates in unambiguous terms show that minority status of a group of persons has to be determined on the basis of population of a State or Union Territory.

Further a perusal of Articles 350A and 350B which were inserted by the Constitution (7th Amendment) Act 1956 ·indicates that the status of linguistic minorities has to be determined as state-wise linguistic minorities/ groups. Thus the intention of the framers of the Constitution and subsequent amendmeilts in the Constitution indicate that protection was conferred not only to religious minorities but also to linguistic minorities on basis of their number in a State (unit) where they intend to establish an institution of their choice. It was not contemplated that status of linguistic minority has to be judged on basis of population of the entire country. If the status of linguistic minorities has to be determined on basis of the population of the country, the benefit of Article 30 has to be extended to those who are in majority in their own States·;'· H

712 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A The question who are minorities arose for the first time in the case of Kerala Education Bill case [1959] SCR P.995 at 1047-50. In the said decision it was contended by the State of Kerala that in order to constitute a minority who may claim protection of Artie le 30 (I) persons or group of persons must '· numerically be minority in the particular region in which the educational institution in question is or is intended to be situated. Further according to State of Kerala, Anglo-Indians or Christians or Muslims of that locality taken as a unit, will not be a minority within the meaning of the Article and will not, therefore, be entitled to establish and maintain educational institutions of their choice in that locality, but if some of the members belonging to the Anglo Indian or Christians community happen to reside in another ward of the same municipality and their number be less than that of the members of other communities residing there, then those numbers of Anglo-Indian or· Christians community will be a minority within the meaning of Article 30 and will be entitled to establish and maintain educational institution of their choice in that locality. Repelling the argument this Court held thus:-

D "We need not however, on this occasion go further into the matter and enter upon a discussion and express a final opinion as to whether education being a State subject being item ll of List 11 of the Seventh Schedule to the Constitution subject only to the provisions of entries 62, 63, 64 and 66 of List I and entry 25 of List III, the existence of E a minority community should in all circumstances and for purposes of all laws of that State be determined on the basis of the population of the whole State or whether it should be determined on the State basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of the population of a particular locality when the law under attack applies F only to that locality, for the Bill before us extends to the whole of the St~te of Kerala and consequently the minority must be determined by reference to the entire population of that State. By this test Christians, · Muslims and Anglo-Indians will certainly be minorities in the State Of Kerala." G Jn ;A.M Patroni v. E.C.Kesavan, AIR (1965) Kerala, 75 it was held as this:

"6. The. contention of the petitioners is that they have an exclusive . · right to administer the institution under Art. 30 (1) of the Constitution H and that the order of the Director of Public Instruction constitutes

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, .1.] 713

violation of that right. Clause (1) of Art.30 provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice; and clause (2) that the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. The word "minority" is not defined in the Constitution; and in the absence of any special definition we must hold that any community, religious or linguistic, which is numerically less than fifty per cent of the population of the State is entitled to the fundamental right guaranteed by the article."

The view that in a state where a group of persons having distinct c language is numerically less than fifty per cent of population of that state are to be treated as linguistic minority was accepted by the Government of India and implemented while detennining the minority status of persons or group of persons and the same is evident from the views expressed by Government of India before the Special Rapporteur of the U.N. Sub- Commission on D Prevention of Discrimination and Protection of Minorities, when he was collecting information relating to the study on the concept of Minority and cope of the ICCPR 1966.

The Special Rapporteur in his report "Study on the Rights of Persons Belonging to Ethnic Religious and Linguistic Minorities" published by the E Centre for Human Rights, Geneva states on the interpretation of the term "Minority" as thus:

"For the purposes of the study, an ethnic, religious or linguistic minority is a group numerically smaller than the rest of the population of the State to which it belongs and possessing cultural, physical or historical characteristics, a religion or a language different from those of the rest of the population."

In the said report, views of the Government of India which was based on decision of Kerala High Court in the case of A.M. Paatroni was referred to which runs as under:

"(39) In India, the Kerala High Court, after observing that the Constitution granted specific rights to minorities, declared that "in the absence of any special definition we must hold that any community religious or linguistic, which is numerically less than 50% of the H

714 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A population of the State is entitled to the rights guaranteed by the Constitution".

However in the case of D.A. V. College v. State of Punjab, [1971} Suppl. SCR p. 688 at 697, an argument was raised that minority status of a person or group of persons either religious or linguistic is to be determined B by taking into consideration the entire population of the country. While dealing with the said argument this Court held as follow:

"Though, there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire population of the country, in our view they are to be determined only c in relation to the particular legislation which is sought to be impugned, namely that if it is the State legislature these minorities have to be determined in relation to the population of the State".

It may be noted that in the case of D. A. V. College (supra), this Court was dealing with the State legislation and in that context observed that if it is the state legislation, minority status has to be determined in relation to the population of the State. However, curiously enough, there is no discussion that if the particular legislation sought to be impugned is a central legislation, minority status has to be tested in relation to the population of the whole of the country. In the absence of any such discussion it cannot be inferred that if there is a central legislation, the minority status of a group of persons has to be determi~e'd in relation to the entire population of the country.

In the year 1976 by Fourty-Second Amendment Act, the Entries ll and 25 of List II of Seventh Schedule relating to Education and Vocational and Technical Tr~ining Labour respectively were transferred to the Concurrent F List as Entry No.25. In the Constitution of India as enacted Entries ll and 25 of List II were as under:

Entry 11

"Education including Universities subject to the provisions of Entries G 63, 64, 65 and 66 of List I and Entry 25 of List Ill".

Entry 25

"Vocational or Technical training of labour"

By the Constitution (42nd Amendment) Act, 1976 Emry 25 of List H Ill was substituted by the following entry viz:

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE,J.] 715

Entry 25 A "Education including technical education, medical education and universities subject to the provisions of Entries 63, 64, 65 and 66 of ,. List I; vocational and technical training of Labour".

And Entry 11 of List n was omitted. B On 6.2.1997 when these matters came up before a Bench of seven Judges of this court, the Bench passed an order which runs as under:

"In view of the 42nd Amendment to the Constitution placing with effect from 3.1.1977 the subject"Education in Entry 25 List Ill ofthe C 7th Schedule to the Constitution and the quoted decisions of the Larger Benches of this Court bei~g of the pre amendment era, the answer to the brooding question, as to who in the context constitutes a minority, has become one of the utmost significance and therefore, it is appropriate that these matters are placed before a Bench of at least ll Hon'ble Judges for determining the questions involved''. D It is for the aforesaid reasons this question has been placed before this Bench.

In view of the referring order the question that arises for consideration is whether the transposition of the subject Education from List II to List III E has brought change to the test for determining who are minorities for the purposes of Article 30 of the Constitution.

It may be remembered that various entries in three lists of the Seventh Schedule are not powers of legislation but field of legislation. These entries are mere legislative heads and demarcate the area over which the appropriate legislatures are empowered to enact law. The power to legislate is given to the appropriate legislature by Article 246 and other articles. Article 245 provides that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a ·state may make laws for whole or any part of the State. Under Article G 246 Parliamenrhas exclusive power to make Jaw with respect to any of the matters enumerated in List I in the Seventh Schedule. Further under clause (2) of Article 246 Parliament and subject to clause (l) the legislature of any State are empowered to make law with respect to any of the matters enumerated in List III Seventh Schedule and under clause (3) of Article 246, the legislature of any State is empowered to enact law with respect to any of the matters H

716 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A enumerated in List 11 in the Seventh Schedule subject to clauses ( 1) and (2). From the aforesaid provisions it is clear that it is Article 246 and other Article~ which either empower Parliament or State Legislature to enact law and not the Entries finding place in three Lists of Seventh Schedule. Thus the function of entries in three lists of the Seventh Schedule is to demarcate the B area over which the appropriate legislatures can enact laws but do not confer power either on Parliament or State Legislatures to enact laws. It may be remembered, by transfer of Entries, the character of entries is not lost or destroyed. In this view of the matter by transfer of contents of entry 11 of List II to List III as entry 25 has not denuded the power of State Legislature to enact law on the subject 'Education' but has also conferred power on C Parliament to enact law on the subject "Education". Article 30 confers fundamental right to linguistic and religious minorities to establish and administer educational institutions of their choice. The test who are linguistic or religious minorities within the meaning of Article 30 would be one and the same either in relation to a State legislation or Central legislation. There .. cannot·be two tests one in relation to Central legislation and other in relation to State legislation. Therefore, the meaning assigned to linguistic or religious minorities would not be different when the subject "Education" has been transferred to the Concurrent List from the State List. The test who are linguistic or religious minorities as settled in Kerala Education Bill's case continues to hold good even after the subject "Education" was transposed into Entry 25 List III of Seventh Schedule by the 42nd Amend1nent Act. If we give different meaning to the expression "minority" occurring in Article 30 in relation to a central legislation, the very purpose for which protection has been given to minority would disappear. The matter can be examined from another angle. It is not disputed that there can be only one test for determining minority status of either linguistic or religious minority. It is, therefore, not permissible to argue that the test to determine the status of Linguistic minority would be different than the religious minorities. If it is not so, each linguistic State would claim protection of Article 30 in its own State in relation to a central legislation which was not the intention of framers of the Constitution nor the same is borne out from language of A11icle 30. I am, therefore, of the view that the test for determining who are the minority, either linguistic or religious, has to be determined independently of which is the law, Central or State.

In view of what has been stated above, my conclusion on the question who are minorities either religious or linguistic within the meaning of Article H 30 is as follows:

T.M.A. PAl FOUNDATIONv. STATE OF KARNATAKA [V.N. KHARE,J.} 717 The person or persons establishing an educational institution who A belong to either religious or linguistic group who are less than fifty per cent of total pQpulation of the state hi which educational institutional is established would be linguistic or religious minorities.

Conflict between ARTICLE 29(2) AND ARTICLE 30(1) whether Article JO(I) is subject to Article 29(2). What are the contents of Art.JO(l)? B The issue in hand is full of complexities and an answer is not simple. Under Article 30( I), linguistic or religious minorities' fundamental rights to establish and administer educational institution of their choice have been protected. Such institutions are of three categories. First category of institutions C are the institutions which neither take government aid nor are recognised by the State or by the University. Second category of institutions are those which do not take financial assistance from the government but seek recognition either from the State or the University or bodies recognised by the government for that purpose and the third category of institutions which seek both government aid as well as recognition from the State or the D Univ,~rsity.

Here, I am concerned with the third category of minority institutions and my answer to the question is confined to the said category of minority educational institutions. E It is urged on behalf of the minority institutions that Article 30(1) confers an absolute right on linguistic or religious minorities to establish and administer educational institutions of their choice. According to them, the expression 'choice' indicates that one of the purposes of establishing educational institutions is to give secular education to the children of minority communities and, therefore, such institutions are not precluded from denying F admission to members of non-minority communities on grounds only of religion, race, caste, language or any of them. In nutshell, the argument is that Article 30( I) is not subject to Article 29(2). Whereas, the argument of learned Solicitor General and other learned counsel is that any minority institution receiving government aid is bound by the mandate of Article 29(2) G and such a minority institution cannot discriminate between the minority and majority while admitting students in such institutions. According to them, Article 30(1) does not confer an absolute right on the institutions set up by the linguistic or religious minorities receiving government aid and such institutions cannot extend preference to the members of their own community in the matter of admission of students in the institutions. H

718 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A The question, therefore, arises whether minority institutions receiving government aid are subject to provisions of Article 29(2).

Learned counsel for the parties has pressed into service various rules of constructions for interpreting Article 29(2) and Article 30(1) in their own way. No doubt, various rules of construction laid down by the courts have B been of considerable assistance as they are based on human experience. The precedents show that by taking assistance from rule of interpretations, the courts have solved many problems. We, therefore, propose to take assistance of judicial decisions as well as settled rules of interpretation while interpreting Articles 29(2) and 30( 1) of the Constitution. c After the Constitution of India came into force, Articles 29 and 30 came up for interpretation before various High Courts and the Apex Court. There appears to be no unanimity amongst the judicial decisions rendered by the courts as regards the extent of right conferred by Article 30(1 ). One line of decisions is that minority institutions receiving government aid are bound D by constitutional mandate enshrined in article 29(2). The second line of decisions is that minority institutions receiving government aid while admitting students from their own communities in the institutions established by them are free to admit students from other communities - belonging to majority, and such admission of students in the institution do not destroy the minority character of the institution. The third line of decisions is that under Article E 30(1) fundamental right declared in terms is absolute although it was not decided whether Article 30(1) is subject to Article 29(2) or not. However, the view in the said decisions is that the right conferred under Article 30( 1) is an absolute right. The fourth line of decision is that there can be no communal reservation for admission in Govt. or government aided institutions. The F aforesaid categories of decisions shall hereinafter be referred to as first, second, third and fourth category of decisions.

The first decision in first category of decisions of this Court is The State of Bombay v. Bombay Education Society and Ors., [ 1955] I SCR 568. In this case, a Society consisting of members of Anglo-Indian community G whose mother tongue was English set up an institution in the then State of Bombay. The State of Bombay in the year 1955 issued an Order that no school shall admit to class where English is used as a medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English namely, Anglo-Indians and citizens of non-Asiatic descent. H One of the members of the Christian community sought admission in the

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 719

school on the premise that his mother tongue was English. He was refused A admission in view of the aforesaid Government Order, as the student was neither an Ang1o-lndian whose mother tongue was English nor a citizen of non-Asiatic descent. This was challenged by means of a petition under Article 226 before the Bombay High Court and the Govt. order was struck down. On appeal to the Apex Court, this Court held tnus: B "Article 29(1) gives protection to any secti~n of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same. Article 30(1) secures to all minorities whether based on religion or language, the right to establish and administer educational institutions of their choice. Now, suppose the State C maintains an educational institution to help conserving the distinct language, script or culture of a section of the citizens or makes grants- in-aid of an educational institution established by a minority community based on religion or language to conserve their distinct language, script or culture who can claim the protection of Article 29(2) in the matter of admission into any such institution.? Surely, D the citizens of the very section whose language, script or culture is sought to bf~ conserved by the insti~ution or the citizen who belonged to the minority group which has established and is administering the institution, do not need any protection against themselves and therefore, Article 29(2) is not designe~ for the protection of this section or this E minority. Nor do we see any reason to limit article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in article 29(1) or article 30(1 ), for the citizens, who do not belong to any minority group, may quite conceivably need this protection just as much as the citizens of such other minority groups. If it is urged that the citizens of the majority group are· amply protected· F by article 15 and do not require the protection of article 29(2), then there are several obvious answers to that argument. The language of article 29(2) is wide and unqualified and may well cover all Citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of article 29(2) .extents against the State or any body who denies the right G conf~rred by it. Further article 15 protects all citizens against discrimination generally, but article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place article 15 is quite general and wide in its terms and applies to all citizens, whether they H

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A :belong to the majority or minority groups, and gives protection to all ~he citizens against discrimination by the State on certain specific .grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the B citizens of the majority group have no special educational rights in the nature ·of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogem reason for such discrimination.

(emphasis supplied) c ' Kerala Education Bill, [ 1957-1959] SCR 995, it was held thus: In Re

"Under cl. ( 1)of Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Art. 30( 1) which has hereinbefore been quoted in full. This right, however, is subject to cl. 2 of Art. 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. "

F (emphasis supplied)

After holding that Article 30( 1) is subject to clause (2) of Article 29, this Court further held thus:

"There is no such limitation in Art. 30( 1) and to accept this limitation will necessarily involve the addition of the words "for their own community" in the Article which is ordinarily not permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Art. 29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.) 721

other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate· a minority institution with a sprinJding of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution."

(emphasis supplied)

In D.A. V. College etc. v. Punjab State and Ors., [1971] suppl. S.C.R. C p. 688 it was held thus:

"A reading of these two Articles t_ogether would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for ffi(Lintaining and facilitating the excellence of its standards. This right ls further subject to clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds. On grounds only of religion, race, caste, language or any of them. While this is so these two articles are n9t inter-linked nor does it permit of their being always read together."

In St. Stephen's College v. University of Delhi, [ 1992] l SCC 558, Shetty J. speaking for the majority held that Article 29(2) applies to minority as well as non-minority institutions.

From the decisions referred to above, the principles that emerge are these:

(I) Article 29(2) confers right on the citizens for admission into educational institution maintained or aided by the State without discrimination. To limit this right only to citizens belonging to minority group will be to provide double protection for such citizens and to hold that citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for maintenance of which they H

722 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A make contribution by way of taxes. There is no reason for such .' .. · discrimination; (2) Article 30( 1) is subject to Article 29(2); and (3) the real import of Articles 29(2) and 30(1) is that they clearly ' ·1 contemplate minority institutions with the sprinkling of the B outsiders admitted into it and by admitting the non-minority into it, the minority institutions do not shed its character and cease to be minority institutions.

The first decision in the second category of cases is in Rev. Father W. C Proost and Ors. v. The State of Bihar and Ors., [1969] 2 SCR 73. It was held therein that the right of minority to establish educational institutions of their choice under Article 30(1) is not so limited as not to admit members of other communities. Such minority institutions while admitting members from their llWn community are free to admit memberS of non-minority communities. The expression 'choice' includes to admit members from other communities. D In the State ,.. of Kerala etc. v. Very Rev. Mother Provincial etc. [ 1971] 1 SCR 734, it was held that it is p(~nnissible that a minority institution while admitting students from its community may also admit students from majority community. Admission of such non-minority students would bring income and the~·institution .. need not be turned away to enjoy the protection.

E The legal principle that emerges from the aforesaid decisions is that a minority ·institution while admitting members from its own community is free to admit students from non-minority community also.

The first decision in the third category of cases is Rev. Sidhajbhai Sabhai a'nd Ors. v. State of Bombay and Anr., [1963] 3 SCR 837. In the said decision;·· although the question as to whether Article 30( 1) is subject to Article 29(2) was not considered, yet it was held that under Article 30( 1) fundamental right declared in terms absolute. It was also held that unlike fundamental freedoms guaranteed under Article 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and not to be whittled down by so-called regulatory measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. \ In Rt. Rev. Magr. Mark Netto v. Government ofKerala and Ors., [1979] H 1 SCR 609, a question arose whether Regional Deputy Director of Public

T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [V.N. KHARE, J.) 723

lnstructions can refuse permission to a minority institution to admit girl A students. This Court while held that refusal to grant permission was violative of Article 30( 1).

The legal principles that emerges from the aforesaid category of decisions are these: B (I) that article 30( l) is absolute in terms and the said right cannot be whittled by down regulatory measures conceived in the interest not of minority institutions but of public or the nation as a whole; and (2) the power of refusal to admit a girl student in a boy's minority institution is violative of Article 30( I).

The fourth category of cases is the decision in the State of Madras v. Srimathi Champakam Dorairajan etc., [ 1951] SCR 525 wherein it was held thus:

"This Court in the context of communal reservation of seats in medical colleges run by the government was of the view that the intention of the Constitution was not to introduce communal consideration in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. However, it may be noted that this case was in relation to an institution referred to in E Article 30( 1) but has been cited for the purpose that there cannot be communal reservation in the educational institution receiving aid out of State funds. "

(emphasis supplied) F From the aforesaid four categories of decisions, it appears that there is not a single decision of this Court where it has been held that Article 30( 1) is not subject to Article 29(2). On the contrary there are bulk of decisions of this Court holding that minority institution cannot refuse admission of members of non-minority community and Article 30( I) is subject to Article 29(2). If I go by precedent, it must be held that Article 30( I) is subject to Article G 29(2). However, learned counsel for minority institutions strongly relied upon the decision in the case of Rev. Sidhajbai (supra) and argued that once Article . 30(1) is fundamental right declared absolute in terms, it cannot be subjected to Article 29(2). Since this Bench is of eleven Judges and decisions of this Court holding that Article 30( l) is subject to Article 29(2) are by lesser H

724 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A number of Judges I shall examine the question independently. One of the known methods to interpret a provision of an enactment or the Constitution is to look into the historical facts or any document preceding the legislation.

B Earlier, to interpret a provision of the enactment or the Constitution on the basis .of historical facts or any document preceding the legislation was very much frowned upon, but by passage of time, such injunction has been relaxed. ··

C In f!is Holiness Kesavananda Bharati Sripadaga/varu etc. v. State of Kerala and Anr. Etc., [1973] 4 SCC 225, it was held that the Constituent Assembly debates although not conclusive, yet the intention of framers of the Constitution in enacting provisions of the Constitution can throw light in ascertaining the intention behind such provision.

D In R. S. Nayak v. A.R. Antu/ay, AIR (1984) SC 684 at page 686, it was held thus: '·!

' "Reports of the Committee which preceded the enactment of a legislation, reports of Joint Parliament Committee, report of a commission set up for collecting information leading to the enactment are permissible external aids to construction. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament, why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment, existing state of Law, the envirQnment necessitating enactment of legislation, and the object sought to be achieved, be denied to Court F whose function is primarily to give effect to the real intention of the .. Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction.

. The modern approach has to a considerable extent eroded the ex~lusionary rule even in England."

Thus, the accepted view appears to be that the report of the Constituent Assembly debates can legitimately be taken into consideration for construction of the provisions of the Act or the Constitution. In that view of the matter, it is necessary to look into the Constituent Assemb~y debates which led to enacting' Articles 29 and 30 of the Constitution.

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 725

The genesis of the provisions of Articles 29 and 30 needs to be looked into in their two historical stages to focus them in their true perspective. The first stage relates to pre-partition deliberations in the Committees and Constituent Assembly and the second stage after the partition of the country. On 27th of February, 1947, several Committees were formed for the purpose of drafting Constitution of India and on the same day, the Advisory Committee B appointed a Sub-Committee on minorities with a view to submit its report with regard to the rights of the minorities. Before the Fundamental Rights Sub-Committee, Shri K.M. Munshi - one of its members wanted certain rights for minorities being incorporated in the fundamental rights. He was advised by the Fundamental Rights Committee that the said report regarding rights of minorities may be placed before the Minority Sub-Committee. On C April 16, 1947, Shri K.M. Munshi circulated a letter to the members of the Sub-Committee on minorities recommending that certain fundamental rights of minorities be incorporated in the Constitution. The recommendations contained in the said letter run as under:

"I. All citizens are entitled to the use of their mother tongue and the script thereof and to adopt, study or use any other language and script of his choice.

2. Citizens belonging to national minorities in a State whether based on religion or language have equal rights with other citizens in fonning, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.

(emphasis supplied) F

3. Religious instruction shall not be compulsory for a member of a community which does not profess such religion.

4. It shall be the duty of every unit to provide in the public educational system in towns and districts in which a considerable proportion of citizens of other than the language of the unit are residents, adequate G facilities for ensuring that in the primary schools the instruction shall be given to the children of such citizens through the medium of their own language. Nothing in this clause shall be deemed to prevent the unit from making H

726 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A the teaching of the national language in the variant and script of the choice of the pupil obligatory in the schools.

5. No legislation providing state aid for schools shall discriminate against schools under the management of minorities whether based on religion or language. B

6. (a) Notwithstanding any custom or usage or prescription, all Hindus without any distinction of caste or denomination shall have the right of· access to and worship in all public Hindu temples, choultries, ... dharmasalas, bathing ghats, and other religious places.

C (b) Rules of personal purity and conduct prescribed for admission to and worship in these religious places shall in no way discriminate against or impose any disability on any person on the ground that he belongs to impure or inferior caste or menial class."

One of the reasons for recommendation of the aforesaid rights was the D Polish Treaty forming part of Poland's Constitution which was a reaction to an attempt in Europe and elsewhere to prevent minorities from using or studying their own language. The aforesaid recommendations were then placed before the Minority Sub-Committee. The Minority Sub·Committee submitted its report amongst other subjects on cultural, educational and fundamental rights of minorities which may be incorporated at the appropriate places in the Constitution of India. The recommendations of the said Sub-Committee were these:

(i) All citizens are entitled to use their mother tongue and the script thereof, and to adopt, study or use any other language and script of their choice; i(ii) Minorities in every unit shall be adequately protected in respect of their language and culture, and no government may enact any laws or regulations that may act oppressively or prejudicially in this respect;

(iii} No minority whether of religion, community or language shall be G ~ deprived of its rights or discriminated against in regard to the admission · into State educational institutions, nor shall any religious instruction be compulsorily imposed on them;

(iv) All minorities whether of religion, community or language shall ' be free in any unit to establish and administer educational institutions H

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 727

of their choice, and they shall be entitled to State aid in the same manner and measure as is given to similar State aided institutions;

(v) Notwithstanding any custom, law, decree or usage, presumption. or terms of dedication, no Hindu on grounds of caste, birth or denomination shall be precluded from entering in educational institutions dedicated or intended for the use of the Hindu community or any section thereof;

(vi) No disqualification shall arise on account of sex in respect of public services or professions or admission to educational institutions save and except that this shall not prevent the establishment of separate educational institutions for boys and girls." C Initially, Shri G.B. Pant was of the view that these minority rights should be made to form part of unjusticiable Directive Principles, but on intervention of Shri K.M. Munshi those minority rights were included in the fundamental rights chapter. On 22nd April, 1947, the report of Minority Sub- Committee was placed before the Advisory Committee. The Advisory D Committee, inter alia, recommended that Clause 16 which corresponds to .L Article 28 of the Constitution should be re-drafted as follows:

"All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality or health, and to the other provisions of this chapter." E The Advisory Committee then considered the recommendations of the Sub-Committee and it was resolved to insert the following clauses among the justiciable fundamental rights:

"( 1) Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect;

(2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission into State educational institutions, nor shall any religious instruction be compulsorily imposed on them;

(3) (a) All minorities whether based on religion, community or language shall be free in any unit to establish and administer educational institutions of their choice; H

728 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A (b) The State shall not while providing Sate aid to schools discriminate against schools under the management of minorities whether based on religion, community or language."

This became Clause 18.

B The recommendations of the Advisory Committee were then placed before the Constituent Assembly which met on 1st May, 1947. When Clause 18 was moved by Shri Sardar Vallabhbhai Patel for adoption by the House, several members were of the view that Clause 18 may be referred back to the Advisory Committee for reconsideration in the light of discussion that took ·place on that· day. However, Shri K.M. Munshi • another member of the C Constituent Assembly suggested that only sub-clause (2) of Clause 18 be referred back to the Advisory Committee for reconsideration. Ultimately, the amendment moved by Shri K.M. Munshi was adopted and sub-clause (2) of Clause 18 was referred back to the Advisory Committee for reconsideration. Thereafter. Clause 18(1) and Clause 18(3) were accepted without any D amendment.

The Advisory Committee re-considered Clause 18(2) and recommended that Clause 18(2) be retained after deleting the words "nor shall any religious instruction be compulsorily imposed on them" as the said provision was already covered by Clause 16. Thus, sub-clause (2) was placed before the E House on 30th August, 1947 for being adopted along with the recommendation of the Advisory Committee. When the matter was taken up, Mrs. Purnima Banerji proposed the following amendments that after the word 'State' the words 'and State-aided' be inserted. While proposing the said amendment, Mrs. Banerji stated thus:

F "The purpose of the amendment is that no minority, whether based on community or religion shall be discriminated against in regard to the admission into State•aided. and State educational institutions. Many --- of the provinces, e.g. U.P., have passed resolutions laying down that rio educational institution will forbid the entry of any members of any community merely on the ground that they happened to belong to a G particular community even if that institution is maintained by a donor who has specified that that institution should only cater for members of his particular community. If that institution seeks State aid, it must allow members of other communities to enter into it. In the olden days, in the Anglo-Indian schools (it was laid down that, though H those schools would be given to Indians. In the latest report adopted