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

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE,J.} 729

by this House it is laid down at 40 per cent. I suggest Sir, that if this A clause is included without the amendment in the Fundamental Rights, it will be a step backward and many provinces who have taken a step forward will have to retrace their steps. We have many institutions conducted by very philanthropic people, who have left large sums of money at their disposal. While we welcome such donations, when a B principle has been laid down that, if any institution receives State aid, it cannot discriminate or refuse admission to members of other communities, then it. should be follow. We know, Sir, that many a Province has got provincial feelings. If this provision is included as a fundamental right, I suggest it will be highly detrimental. The Honourable Mover has not told us what was the reason why he C specifically excluded State-aided institutions from this clause. If he had explained it, probably the House would have been convinced. I hope that all the educationists and other members of this House will support my amendment''.

(emphasis supplied) D The amendment proposed by Mrs. Banerji was supported by Pandit Hirday Nath Kunzru and other members. However, on intervention of Shri Vallabhbhai Patel, the following Clause 18(2) as proposed by the Advisory Committee was adopted: E "18 (2). No minority whether based on religion, community or language shall be discriminated against in regard to the admission . into state educational institutions."

After clause 18 (2) was adopted by the Constituent Assembly, the same ... was referred to the Constitution Drafting Committee of which Dr. B.R. F Ambedkar was the Chairman. The Drafting Committee while drafting clause 18 deleted the word 'minority' from clause 18(1) and the same was substituted by the words 'any section of the citizens". However, rest of the clause as adopted by the Constituent Assembly was retained. Clause 18 (1 ), (2) and (3) (a) & (b) were transposed in Article 23 of the Draft Constitution of India. G Article 23 of the Draft Constitution of India runs as under:

Cultural and Educational Rights

"· 23. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script and culture of H

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A its own shall have the right to conserve the same.

(2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained b~ the State. B (3)' (a) All minorities whether based on religion, community or language shall have the right to establish and administer educational institutions of their choice.

(b) The State shall not, in granting aid to educational institutions, C discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion, community or language".

On 8.12.1948, the aforesaid draft Article 23 was placed before the Constituent Assembly. When draft Article 23 was taken up for debate, Shri D M. Ananthasayanam Ayyangar stated that for the words "no minority" occurring in clause 2 of draft Article 23, the words" no citizen or minority" be substituted. He stated thus:

"I want that all citizens should have the right to enter any public educational institution. This ought not to be confined to minorities. E That is the object with which I have moved this amendment."

It is at that stage, Shri Thakur Dass Bhargava moved amendment No. 26 to amendment No. 687. According to him, for amendment No. 687 of the List of amendment, the following be substituted:

F "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."

He further stated thus: /

' G "Sir, I find there are three points of difference between this amendment and the provisions of the section which it seeks to amend. The first is to put in the words 'no citizen' for the words 'no minority'. Secondly that not only the institutions which are maintained by the State will ·be included in it, but also such institutions as are receiving aid out of state funds. Thirdly, we have, instead of the words " religion, H

T.M.A. PAl FOUNDATION 1'. STATE OF KARNATAKA [V.N. KHARE, J.] 731

community or language", the words, "religion, race, caste, language or any of them."

Now, Sir, it so happens that the· words "no minority'' seek to differentiate the minority from the majority, whereas you would be pleased to see that in the Chapter the words of the heading are "cultural and educational rights", so that the minority rights as such should not find any place under this section. Now if we read clause (2) it would appear as if the minority had been given certain definite rights in this clause, whereas the national interest requires that no majority also should be discriminated against in this matter. Unfortunately, there is in some matters a tendency that the minorities as such posses and are given certain special rights which are denied to the majority. It was the habit of our English masters that they wanted to create discriminations of this sort between the minority and the majority. Sometimes the minority said they were discriminated against and on other occasions the majority felt the same thing. This amendment brings the majority and the minority on an equal status. D In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority. Therefore, what this amendment seeks to do is that the majority and the minority are brought on the same level. There will be no discrimination between any member of the minority or majority in so far as admission to educational institutions are concerned. So I should say that this is a charter of the liberties for the student-world of the minority and the majority communities equally.

Now, Sir, the word "community" is sought to be removed from this provision because "community" has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then "community" as such has no basis. So the word "community'' is meaningless and the words substituted are "race or caste". So this provision is so broadened that on the score of caste, race, language or religion no discrimination can be allowed.

My submission is that considering the matter from all the standpoints, this amendment is one which should be accepted unanimously by this House". H

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A After Dr. B.R. Ambedkar gave clarification as to why the words "no minority" were deleted and its place "no section of the citizen" were substituted in clause (I) of Draft Article 23. Amendment as proposed by Shri Thakur Dass Btiargava was put to motion and the same was adopted. Thus the word 'minority' was deleted and the same was substituted by the word 'citizen' B and for the words "religion, community or language", the words "religion, race, caste, language or any of them" were substituted. Thus, Article 23 was split into' two Articles - Article 23 containing clause (I) and clause (2) of Article 23 and sub-clauses (a) and (b) of clause (3) of Article 23 was numbered as Article 23-A. Subsequently Articles 23 and 23-A became Articles 29 and 30, respectively. Thus, Article 23, as amended, became part of the Constitution C on 9th December, 1948.

The deliberations of the Constituent Assembly show that initially Shri K.M. Munshi recommended that citizens belonging to national minority in /

the State whether based on religion or language have equal rights with other citizens in setting up and administering at their own expense charitable, .... _ D religious and social institutions, schools and other educational establishments with the free use of their language and practke of their religion for being incorporated in the proposed Constitution of India. This was with a view that the members of the majority community who are more in number may not at any point of time take away the rights of minorities to establish and E administer educational institution of their choice. It was very much clear that there was a clear intention that the rights given to minorities under Article 30(1) were to be exercised by them if the institution established is administered at their own cost and expense. It is for that reason we find that no educational institution either minority or majority has any common law right or fundamental right to receive financial assistance from the government. Non- F discriminatory clause (2) of Article 30 only provides that the State while giving grant-in-aid to the educational institutions shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. The subsequent deliber~tions of the Constituent Assembly further shows that there was thinking in the minds of the framers of the Constitution that equality and secularism be given: paramount importance while enacting Article 30( 1). It is evident that amendment proposed by Shri Thakur Dass Bhargava which is now Article 29(2) was a conscious decision taken with due deliberations. The Constituent Assembly was of the view that originally clause (2) of draft Article 23 sought to distinguish the minority from majority, whereas in the chapter the words are 'cultural and educational rights' and as such the word 'minority' ought

~i ) ~ t 1·- t~:A. fAI:fp~ND.A}'JON y. ST.AT-E OF KA.RN.ATAKA (V.N. KHARE, J.) S73·3

·-not zto:ha.ve .found placeiin-that Article: The'reason'.fot bmissiort'.Of'wotds·rn lA .·clause .(2) of draft·~Article" 23•was 1 that: 'minorities' were .ear'lie( given·.:certain f i'ignts under. that cia·use rwhere ·-nati.onatrihteresttrequited :that nb,?nerriber ;of · majority afso :shoutd·be·dis·criiniirated·against •.ili ·ettu·cationa·t ntait'ers?:itlalso : shows that bY:the aforesaid·amendtnent·discrimination between minority and L rnaJ~.ri~ .w,a_~ ·~o~~ ·aw~y w.ith .an<i 'th.e .ameri_dm.e'nr has i bro~~ht ihe ~·~otity !B ·:•and maJonty tn. equat· footmg:'The ·debate also shows ;what· was .ongm·any '··proposed either~in ctaus·e. 18(2)'.·oi Art!.23(2):iq.he· debate futthef ·shows that rthe.:post·partition, stage !memb~rs~of the''Constituehl'Assembly linterided':to · broadeit the scope of clause '(2) fbf draft·~Afticle :23". and .never wiuitedrto ·~ confine ' theA·ights ·only: to~ the. minoritiesr·The vi~ws 'of.JheJin"embenr ·o f, the =

'J Cohstituent'iAssembly1:Were·l-that :-if. 1 any i.hstitutiori' 4 takes S'a idl from't.the rc

·, I government for' establ.ishing'and .administering educatiti'nal .lnstifution·s'it 'cannot .·aiscriminate.\vhile '. admitting ,·s·tudents ·, on'~ the fgtound~of religion, "race ~ and . taste·. .It :tn•ay be::·seen •that .by' accepting·th'e !arneridm·ent proposed·~ by\Stlri Thak~r .-Dass ·Bhargava,c:'the ·scope "of Article· 29(2) rw.as :broadened··;nasmuch .:a's ~he 'interest ofirninor~ty ·.• either .rel.igi~os· or 'linguistic wa·s\,seC.tif~(f,an~, ( • ;::therefore, the intentiori·of the fram·er's of the·Cohstltuticm -for·-en·actJhg ·clause D · (2) :of Arti.cle ·29(2) was~.tltat : cince· ra tninotity~iiistittiti'onitakes ·government (aid;. it becomes subject'to clause ~ (2) of,Article 29:, ~·~l· :=, L ... rlii ~ ·• ~~n' rb tm . ·oiJL·nt~no'J :uH fu t ~J\-1£ !.lbit"IA It was then urged that if the intention of the framers of the Constitution Gwas )to J make .Article 1;30( 1} .i su bje'Ct Ito riArticle '}29(2);rtlte'1appropriate place :E

·. where;,it .should ·have 1f<>und .. ~lace~ was•rArtide (<JO(J.) l'itsdf hither :d'laif)in lAitiele ,29..and, th.erefore!fArticte·:29(2)>cannot~ lfe!treated · :as :.an··~xc·eption to t article 1-JO( i ).,..There ,,is rie5'·merit ~in >the· contention·. •It<~ is ~earlier boticed ~that •dause:{J 8) .when ·was placed l.befote :the·constitiient rAssernbty:--contained :the provisions of Article 29(1 )(2) and 30(1)(2) and all wete'nuffibered :as rchuise 18(1) (2) (3)(a) (b). Agaln when clause (18) was transposed in draft Article ··F ~;23;rA:rticle ·29(1 )(2) (and~Artitle 130( t )'(2) lJ;both ·~~re'togethe~ 'iti'afaft Article <2~i':sshri 1Thakur·· D~ss ··ah:atgava··r~a}neri'drbent'lwl\id1 'Wasfj adbepte<f Was";l in rei~t'fon ·ro ·cHtu~~ ·(2f'ofrAi-t{ct·e' 23 hwhicll 'tihYmmetf·J1aJlfltC'b'in'e~ 1Artfcle <'29(2).''I{ is i fof'tti~t ' reasori~~niCJe'l29(2) Tinds'rpl~ce' i~ 1 WrHcie r29~0 )ddt I~ .-o ;::t 1lc. ::. ~c. J•fl :~~ !,:...~·~ :.m ~t> ' •.JI 1 JGri } ·11 .~, ~o t ·: ;billA r.;m bf.:.n , q , hl2!..>·....:~ l~ln~rr.:ft·was', also. urged 1that~if. the!.framers~of·the;Coiistitution lnterioed/ to tG !cai'Ve out an ~ exception to.;Article r30(1), they·idouldthave :used!tbe·· w()rds L"subj'ect..·to•the provisions;.contaih~d ·irrJartitlt~''29(2)'.'J iri1'the ~ beginnihg· !of . .Artide ·30(1.)1 or 'could 1 have~ used . :the .·expression U~n-otwittistandin~" tin··the beginhing:ofarticle 29(2),and :jn'absence of such:words•'it ca·nnot be held that :A'rticle t29(2) ·is.an\ exception rto,A.iticle :30{ I). ·Reference ·in ~tHis regard :was tH .

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A made to Articles 25 and 26 which contained qualifying words. In fact, the structural argument was based on the absence of qualifying words either in Article 29(2) or 30( I). This argument based on structure of Articles 29(2) and 30( I) has no merit. In fact, it overlooks that the intention of the framers of the Constitution was to confer rights consistent with the other members of society and to promote rather than imperil national interest. It may be noted that there is a difference in the language of Articles 25 and 26. The qualifying words of Article 25 are ~'subject to public order, morality and health and to the other provisions of this part". The opening words of Article 26 are "subject to public order, morality and health". The absence of words "to the other -provisions of this part" as occurring in Article 25 in Art.26 does not mean that Article 26 is over and above other rights conferred in Part-III of the Constitution. In The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., [1962] I SCR 383 and Tilkayat Shri Govindla?Ji Maharaj v. The State of Rajasthan and Drs., [I 964] 1 SCR 561, it has been held that Article 26 is subject to Article 25 irrespective of the fact that the words " subject to other provisions of this part" occurring in Article 15 is absent in Article 26. D For these reasons, it must be held that even _if there are no qualifying expressions "subject to other pro\-isions of this part" and "notwithstanding anything'' either in Article 30( I) or Article 29(2), Article 30( I) is subject to Article 29(2) of the Constitution.

E There is another factor which shows that Article 30( 1) is subject to Article 29(2}. If Article 29(2) is meant for the benefit of minority, there was no sense in using the word 'caste' in article 29(2). The word 'caste' is unheard of in religious minority communities and, therefore, Article 29(2) was never intended by the framers of the Constitution to confer any exclusive rights to the minorities. F Although Article 30( 1) strictly may not be subject to reasonable restrictions, it cannot be disputed that Article 30( I) is subject to Article 28(3) and also general laws and the Jaws made in the interests of national security, public order, morality and the like governing such institutions will have to be necessarily read into Article 30( 1). In that view of the matter the decision by G this Court in Rev. Sidhajhhai (supra) that under Article 30( 1) fundamental right conferred on minorities is in tenns absolute is not borne out of that Article. It, therefore, cannot be held that the fundamental right guaranteed under Article 30( I) is absolute in terms. Thus, looking into the precedents, historical fact and Constituent Assembly debates and also interpreting Articles H 29(2) and 30( I) contextually and textually, the irresistible conclusion is that

T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA (V.N. KHARE,J.] 735 Article 30( I) is subject to Article 29(2) of the Constitution. A The question then arises for what purpose the celebrated Article 30( 1) has been incorporated in the Constitution if the linguistic or religious minorities who establish educational institutions cannot admit their own students or are precluded from admitting members of their own communities in their own institution. lt is urged that the rights under Article 30(.1) conferred on the minorities was in return to minorities for giving up demand for separate electorate system in the country. It is also urged that an assurance was given to the minorities that they would have a fundamental right to establish and administer educational institution of their choice and in case the minority . cannot admit their own students or members of their own community it would be breach of the assurance given to the minorities. There is no denial of the fact that in a democracy the rights and interests of minorities have to be protected. In the year 1919, President Wilson stated that nothing is more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to minorities. Lord Act on emphasized that the most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities. It is also not disputed that in the field of international law in respect of minorities it is an accepted view that the minorities on account of their non dominance are in a vulnerable position in the society and in addition to the guarantee of non-discrimination available to all the citizens, require special and preferential treatment in their own institutions. The Sub-Committee in its report to the Commission on Human Rights reported thus:

"Protection of minorities is the protection of non-dominant groups, which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential treatment of such groups or of individuals belonging to su·ch groups is justified when it is exercised in the interest of their contentment and the welfare of the community as a whole."

(cited in St. Xavier's College, [1974) 1 SCC 717 at 798.)

The aforesaid report was accepted by the Permanent Court of International Justice in a case relating to minority school in Albania which H

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":A arose out ofth~(,(a~qhat A·lb~ni~ .signed a~ Declaration relating to the.position of minorities in the State. Article 4 of the Declaration provided that all t 'A'Ilian'ian· nationals ·shall :be ·equal. b'efore the ~ law. and •shall enjoy :the same . civil•and:political .rights· without distinction as .the: race, language ot relig·ion. ~~Article 5' further provided that all ·Albanian i nationals who belong to· raCial, '(religious or-linguistic ·minorities.. wil't enjoy the 1sarrie treatment a·nd ·security iB :-in law .and .in ·fact as other :Albanian nationals. In particular they shaH have ::.an .equahright.to maintain; manage and control at their .own expense ·or to .:'est~blish.in.the future charitable; religious and social institutions, schools and ·. otherleducationaL~stab'lishments with .the right!to us~ their ·o'A;n language and ·,'to exercise their. religion freely;therein. Subsequently, the Albanian Constitution c liwas·ramended ·and a provision was made for:computsory primary edu·cation :Lfor.all Albanian nationals in State· schools and all.private schools were·to ·be '/closed. The.question arose before the·Penrianent Court oflntemational Justice 'Yas.to:Jwhethe.r Albanian Government :was·right to abolish-the private schools nrun:by·tlie;Aibanian•minorities; The Court was of the view that the. objectof L-Dechirationiwas.to.ensi.tre that'nationals·belonging ·to the·racial, religious or cO . Jinguistici'minorities. shall be placed in every· respect on ·a footing of perfect .eq1.iality .with· other nationals· of the State: The second was to ensure for the minority·Jelement3 suitable·! means·•fordhe preservation Of their"racial peculiarities,~.. ~heir traditions and: their national~ characteristics; ·These two .;.requirements 'Were indeed ·closely -interlocked,· for there·,would be no true .E tiequality ·betweeri.a majority.and'a•minority~ifthe,latter were deprivediof its ,.. rowni~nstitutions and were consequently 'Compelled to renounce ·that which constitutes the very essence of its being a mino'r.ity. 'The Court was of the further view that "there must be equality in fact as well as ostensible legal ·'"eqti~'iity'i~'Ytl'e· sense· ~tthitab·s~nce of discr.iminaiioit iri the w~rds ~f the taw. ~· Ecj~tliri.ty'in· I~\V prectu'de~'-(li'scr,i'll\i~~tlon any -kind; whereas equality in fact of F ·,tm·a-p·riiwolvtdti~'· n-ecessity. of~differe'nt"treatmen't'ln .161-Cier to ana in a result il-·whi~h~e~tablishes: ~.;" equ'il ibrio'm I between different situations., --(St. Xavier's :··'Coll~gi?s''cas~rLG[f'9.74l ' 1··set' ii 7· (],e'r 'Khanna, : .M~the•w, JJ.)~ - · 1 . ' . . . ~ . I . 1 1 • • ,. • I '· t .•.. ; fr · .,;.~ ~~ ;, , .~ L.,I.-.t:~ 'f/ ! .·1· 0. (. • , tU ·, .~til ' JJ ' ; d .. P. l • ' ~,[,\. )

lf 1 e~ Articte·27 ·of the ·(nternatiohal·Cdvenant on 'Civil andJPolitical Rights G ;.; ~'196~ <.I,CC~R)'~tiar~~·tees ' ~n.i~or~t~. ti:ght,s ..i~ the .~ol_l~wing ·te~s: . \ l • n l'Jj'lljlf . ., .... · . , ' •· .. " .-•!, • .1 ... . n 1 l , ~ • ..J • • ' . • • ·

"In those States in which ethnic, religious or Unguistic ..minorities exist persons belonging to such minorities shall not be denied the ~ . ~v <H. ·right; iti:com.n1unity with the other members of their group, to enjoy their own culture, to profess and practice their own rel~gions or to use ' . 'f.IJ( their own· J~ngu.~cre..'' '.; ,. l'J · . ··. i ' ~ ~ .,., ' . •

(H ,·.~ ~ t 11 ~ .i " ,t.. . .~. J' '' • • :' . . . I. .• ' • ~ ) )' I • . J \.. ':.; I. t .J ~1 ' . '

'-' ' T.M.~.tPAJ·,fOUNDATION t:. STAT.E"OF.KARNATAKA [V.N. KHARE, J.] 7)7' Piof Francesco Capot01~ri rin. ·his, ce·tebrated ·1·stucty.:.on' the; Rights:: of~A'.· Persons Belonging 'to Ethnic,1 Religious-:or Lingulsik: kfinorilies~'·stated 1as:.. follows: .... ·,· tA .! · ,, ,rli ~~·Jo~::•·· ,.,· . :;dl;,(i:.~•.rft~TJI./1 ·.J. ,,·:,

~ .. . ,.\'Article 27 o(.t~e 1 Covena~t rn~st,.th~refor~; b~ ·plac.~d: ~htitS:·Prop~r- t. : • ·. .. ~ - - . . . ... - . • ....

, ,. con~ext,~ Jo. ena~le:Jfle objectiy_e~J9f.this 1 arti~.l.~ to_,;be.achieyeddt is o . .,;.. ,: e~s~~tial.th.at ·_Sta~es. shqu~d. ,ado,pti:legi.sl~~.ive:1 ·.and·t~dministrative·~.B~ 1 :,·,~. . ,. r:nea~~res. ~t ·is :h~rd. t~ ,im~gin¥,;ho~ .the:culture ·~n,d !lang~age. of1.a:.t group _can ·be, c~mse~~e~ ,without;lo~;e':'.~mp,le, a spec.iaLad.aptation Qf 1 the educational system of the country~ The right accorded to members ;J , of minorities would quite 1·obviously1ibe· purely ·-theoretical unless

.L·' .• adequate cultural institut-ions·tWere established. Thislapplies~equally !' cJ n1 ~.,-' in, the linguistic field, and ·even I·Where· the •religion··of B'f11inority (is ··1 ··. ,.,,concerned a purely passive attitude on the partiof.the:·Sdlte···would not!' 'I. r-,answer I the· purposes of;:iuiicfe, 27~, [However,)whatever the colintry;n J

•. , ·. ..!groups with suffic_ient resources..to'cariyout•taskS'bftHis .magftitude·!J n: ', .are rare;.if not non-existent.~:Only the effective~exerci·se of the::rights:,t • • ' fl' !Set forth in.articJe-27: ca'n"gu{mant'ee observance'·0fthe-zpr.inCiple Ofthe·1D f

·reaJ, and not only formal, equality of persons 1betonging to minoi'it}"' :I'J ••.· groups ..The:. implem·entation 'of~-these rights !calls·~for: 1 active 1and:.: ,,1 ~"~'·sustained interv.ention ;by: States.~ A passive .attitude ;on the I part'of:tlle ": -~ .. ·· :tatter would render sticW-·iights~irioperative.lk,.; 1.11bnurr ,:, rti tL 1. :s ·.. 1, . . . , a \, ·, ·;..;·· . ·~ · ~, u· :oli ~nn:·~· i ·u '1Lt> L~11 t ·'>:"L· · ~n . ·•·. 'l·n.al (,.J ~. ,"('JO! f •r. ; T;h~ Human Righ~s,.~'!m!nit,~~i ~~n~~?~i~g.l!~d-~J t~~: qptio~a.l. P~t_q<:ol ~~ E of ~~CPR, i~ i~~. G~neral. 9.~.m-n~nt. ~~oP.tr.d by:~~~ ;~~mrn!~~~f! Ol) q~th. Apri!, ;, 1994 .stated t.h.us; .. , . : .. 1 , u F . . :.): ··-11 i 0 .iuH~;,l. h. 1 ~nor1 . , 1 11 ,., ~. Jtii!!, ' ·· · · '' ' T• . ··: , ,' ' ll• . ;·· . · . '· · ' " . ' 1.' -'1 j f l l l f 'J!)!T) ':';( '(:·· .- "The Committe'e points outIJ tHat. ArtiCle· p• 27 establishes ''"J ·-' and recognizes ' ·: 1 aright. which Jl .. · _ ' [·.' 1•-'+ is conferred 01'1 individual~ belonging .mh~ority_ g·~oups I '·"1(._)\fl )1.I,,'Y~·,' ' to (, (. f, . . r ~ : _,..._f J

~· ), •.. ··and which 'is -distinct' r~SrR:~,~~~f~rld'Nionai' tb,. altthe'~~liler"ri'glit~J-- fi 1 1 :::-.;~-·-,).-. ··.... I-~··· ... \.( _. -•·l.J)tt =;;.·_·__. _., •. ~· J .';' -~~f, ·'•V5. r:r~ ll_lt ··:.,/l ......J · whlc~. as mdavaduals m cpmmon wath everyone eJse, tne:r. are alre~~Y. t ••• .. . ·.,r.· ,., .~ ., _... :1. '•" I~' ··1 • ; ;· rti! H qf~t~'<):J ~l·,r;J !,C:J'I ' J!J}c J'IJ ' (1/I.J entitled to .enJoy under'the Covenant." .. · . .· . . . ·,) l.• ,.-· · . · . ·, .. · , :i11!!.. d' , ,,~. ·,r.. b· .... nl ::~in ,•:;-:ln:;l{i10 . 'lf ·fhli:Jt-•. , flt.~J From the· aforesaid: ·report ·.it~ is" cle~l'r·•thatf:in... cea1ain --cir~um·siances r~ights;J: c.onferred.totninofi~;~r~_ups ar.~·d:i'sti~ct fro~ a~d:a~.dlt~nal t~,t~.l.l·_~he _ ?thet·'.'G: nghts whzch:as an md1vaduals 'are:·entJtled 1to enJOY under the:covenant1 The ·• political thinkers have recognised the' 'iinport~anceJof·lilihotity rights as' \ve1Jn1 as for ensuring such ·rights! Accord ingifoithMi; he rights conferrea on~·lingu istic'u Or Ire) igiOUS minoritieS .are nOt'·iil•th·e 'il3tiJ!'e· lQf prjyj iege Or Ct:iflCCSSiOh/ bUt' : their!etJtitlement flows from. the 1doctt·ine·:of ·equatiiy, Whichris the•·real ;ae11 facio equality. Equality in.law ·ptecludes disciirnination ofany:kiridl'where'as;;>H !

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

A equali~y in fact may involve the necessity of different treatment in order to attain a result which establishes equilibrium between different situations. Where there is a plurality in a society, the object of law should be not to split the minority group which makes up the society, but to find out political, social and legal means of preventing them from falling apart and so destroying the society of which they are members. The attempt should be made to B assimilate the minorities with majority. It is a matter of common knowledge that in some of the democratic countries where minority rights were not protected, those democracies acquired status of theocratic States. :~ In India, the framers of the Constitution of India with a view to instill C a sense of confidence and security in the mind of minority have conferred · right~ to them under the Constitution. One of such rights is embodied in Art.30 of the Constitution. Under Art.30 the minorities either linguistic or religious h~ve right to establish and administer educational institutions of their choice. However, under the Constitution every citizen is equal before law, either he may belong to minority group or minority community. But D right~ conferred on minority under Article 30(1) would serve no purpose when they cannot admit students of their own community in their own institutions. In order to make Article 30( I) workable and meaningfu_l, such rights must be interpreted in the manner in which they serve the minorities as well as the mandate contained in Article 29(2). Thus, where minorities are found to have established and administering their own educational institutions, the doctrine of the real de facto equality has to be applied. The doctrine of the real de facto equality envisages giving a preferential treatment to members of minorities in the matter of admission in their own institutions. On application of doctrine of the real de facto equality in such a situation not only Art.30( I) would be workable and meaningful, but it would also serve the mandate contained in Art.29(2). Thus, while maintaining the rule of non-discrimination envis~ged by Art. 29(2), the minorities should have also right to give preference to the students of their own community in the matter of admission in their own institution. Otherwise, there would be no meaningful purpose of Art. 30(1) in the Constitution. True, the receipt of State aid makes it obligatory on the minority educational institution to keep the institution open to non- min~rity students without discrimination on the specified grounds. But, to hold that the receipt of State aid completely disentitles the management of minority educational institutions from admitting students of their community to any extent will be to denude the essence of Art. 30 of the Constitution. It is, therefore, necessary that minority be given preferential rights to admit students of their own community in their own institutions in a reasonable

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 739

measure otherwise there would be no meaningful purpose of ArtJO in the A Constitution.

Article 33 7 of the Constitution provides that grants or government aid has to be given to the Anglo-Indian institution provided they admit 40% of members from other community. Taking the clue from Article 337 and spirit behind Art.30( 1) it appears appropriate that minority educational institutions be given preferential rights in the matter of admission of chiJdren of their community in their own institutions while admitting students of non-minorities which, advisedly, may be upto 50% based on inter se merits of such students. However, it would be subject to assessment of the actual requirement of the minorities, the types of the institutions and the courses of education for which admission is being sought for and other relevant factors.

Before concluding the matter, it is necessary to deal with few more aspects which relate to the regulatory measures taken by the government with regard to government aided minority institutions. In that connection, the State must see that the regulatory measures of control of such institutions should be minimum and there should not be interference in the internal or day-to- day working of the management. However, the State would be justified in enforcing the standard of education in such institutions. In case of minority professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. It is for the reason that the products of such professional institutions are not only E g<'ing to serve the minorities but also to majority commun:ty. So far as the redressal of grievances of staff and teachers of minority institutions are concerned, a mechanism has to be evolved. Past experience shows that setting up a Tribunal for particular class of employees is neither expedient nor conducive to the interest of such employee. In that view of the matter, each p District Judge which includes the Add!. District Judge of the respective district be designated as Tribunal for redressal of the grievances of the employee and staff of such institutions.

Another question that arises in this connection as to on what grounds the staff and teachers, if aggrieved, can challenge the arbitrary decisions of G the management. One of the learned senior counsel suggested that such decisions be tested on the grounds available under the labour laws. However, seeing the nature of the minority institutions the grounds available under labour laws are too wide and it would be appropriate if adverse decisions of the Management are tested on grounds of breach of principles of natural H·

740 r- [.~ · >~.M ;: .11. 'SUPREME COURT• REPORTS [2002].SUPP.' 3 S.C.R.

A.tdustice 1amt~ fa·ir ·play~ or: ~any. regu~ation made lin Hhat respect·r .,1'., ·no) :..-'1:.. )t; .11!' 11JuTI\- ~ )~; Subject to what have been stated above, I concur with the judgment of Ht:m'ble t.he;Chi~f~,Justice:; ;, c'Julf')i'j •4j)HIIt.'· ·1 ':. ::·~'j ~ ~· J!Ji J' /\ 't••,' '•t. trmLti -t·Jf!1 h.Jb. tv1·~ :•JlkJPrt! ru,.LJ!I·')I- ,,/ ':Jri• .Jl n.-fH ,rj •. J ~6d '"iG~~.~,p, Stf~lj .~.O~f\.-~~~·9.~9YAJ~~I, ~=; ~ ry~v~pe~~.~~d.t~_e·,ll)ajor!~rrn Bgju~~~.~m~;Pf.ep~e?. ~.>:J:!o~~ ~!~; 1the.~f.~i~(! l,l.st~c~;·.. th!::?~f~rr;i~g 8P!!l_i<m.i~.td my J~a~.;q~~m~h~I· ;ISh;~!~) ~- .~~~ ~~e ~i.s~_e.ntt~g <?Pi!l.i~n.s gi~~~~ by. our !~~rned;;v si~tJ~rr~~ffi~l~!· 1l: ,~.~9..~!~~rr,~.9~.~r2th~~ ~;-~: ,Y~!}~va? .L .~ -:-.n, -,) ·:11luml; o·J io'ln:•.••!lli"l·· tt.~ ,rr·r·•::-1 ~·'I' r;r· l_• • ·rn '" ,.,ir:J · ~ tl'~· t~b~i'; r·,: -1:~,-1·,., Though the quc:lStJons referred to and re-framed are eleven, the Bench de~ri,J(i ii'fi'C.~St.'ili ~ns~e~ idUr 'of theNl. O'n' th~ ~~:~t~nti6ris(Ja~~an~ed 'b)/ th~I r c·) leanea ~gJfili~e'I -~ho~·~NgGed.'the;s~tca~es :'i'N-·r~;gafd t6c_ th~ 0~~tm~iining 1 ~'e_\;eA° F 1 1

. .. ,,~1 ~(! },.._ -~..r --.: ·~-J ~ , ~ O '_~ fly: ·~,,1 :i···;ru :- ·:-~,. .., ~,.....H,. ;;~f'~s j:L f1 . . !!'i questions, the learned Chtef Justtce has forinulatea the followmg five tssues whi~h J•v• •1 el)COmpaSS J •• .the .,..,&.J entire ,.~1.• .. ,, fi~Jd.: . . , , ,_ I!h tf ~: u• . f ..H-lJ ;!.l'1• r. JI·•·J"'' '.~a.;..or·_,.,J:~<-1 "'·1...1 . r)·t ")r_l J . u •, • ~ ~

rUIH Jprrerrs,f(f'f-ifR.:E 'A."t·f-u-NbAMEN'rA'i-1 R·iaHT 'To")~i'tr)·.u-p<>t -~JMI. <Jrh "':E:oucX1IbNAL iNsrrfi.ITid~s :J\Nri' IF so','li'NoER wi-ircH'' DJ ~lhJOdt ~nt:~ROVISION?•' lr/'W' Jj In ·-•· ,:.;:-n • o •:.,, __ r· •:,;1 ~·O · J .dl ._. .. ·• 1;. ·1r ·111-tt.~.:. 10 lrn-..·:;ni •,11' ••1 -.~J. ..r,~ h--.u• . J' " l .•, ~ ' c~ • • •, -.-1-..~: : t,.··, m ..:nt n• . - a .,, b·.2.1z~D,OESr~:UNNIKRISHNAN t S r-J:.CASE.- _REQUIRE l. RE.~ f\no~•·l{llcCONSIDERATION? rl ~~· ... fll r~r •1 l•: .;u . . . · I . J . ..... H. ],• ~':~~ J'!:. HJ n::. (JUfl · f~,-1~ l'.· ,.: .r.:L·~-~- .-It f: ""-''··ll~r.t·t·. r.Jr. ,. 1.-. t, 1 • - •t • t.-'"' t ~~ i ..... lq"'( r•r. , " .f"f/".

. 3. 'IN' CASE OF 'PRIVATE INSTITUTIONS (UNAIDED 'AND 1(..,1 ... t{ no· 'H~MP"a· 1 1'. _. 1·~ ·•:·. J. l . f · ~,..•' •"U, .. o;. · ~ .-11l ·,, :·' ~ ' J' ···~ •'1f' J:,.r p ' .' _'\no ... .

. A1DED);'CAN THERE BE 'GOVERNMENT-REGULATIONS"': ·~! !I: l I!Jtl 'C;ANftiF' f6' s-o: WHAT 'EX.TEN(t?'J'.()D'J'I~ ~I'll t~n rl -~· • Jrlt :Jf1J d. ~) UC: _ ·u llUmf!'~J J ; Jll(.·IV ·n il ->' ' urj :-.._,, !l"l',_r: W -.~r1f -. · ·~· ..--, r flt_ ·,u. ~4liHriN·· :ORDER·rTO DETERMINE~>THE EXISTENCE 'OF... -Al ''si\ltj... rs~1RELlGIOUS OR-LINGUISTIC MINORITY.INRELATION.TO.J ,f:ott ru:;lbt.ARTlCLE...30, WHAT)S lO BE 'THE1UNJT; THE.STATE OR:•· m F·t th... -.. THE COUNTRY, AS A WHOLE?u.· :~.~ ~t~t,rm 'Jf'' u ~~ ..)llt.rn .. blr,··H.• )'o'l:or","!"" J :-h),- .. :·.-d. t"'p1 '' . t: ' - ,r!1 ~- J ·· • ~·"i (! ·~: .~ '' nh.,f · ,i·H, i(' . 5. . TO WHAT EXTENT CAN THE RIGHTS OF.AIDED PRIVATE' tr:S :.,,, ,olq~. ,{. tr .~1'1 -! ' H~ti · ~ 1 ~ J .JOJ ~'-' · ~ · .. •1:·. .... r .i , ~t. · • ·t.~·'·'~ · I : t l' ~,~~~~ ·~.ll ~~'if \ ..,cJ I r' • MINORITY INSTITUTIONS TO ADMINISTER BE <.'tvdiJ,IJr~l ; t .Jl.lt' Ht I :~f~ REGULATED? rl' · c: ·aer91fe:i' advert to H1~s(!"'fssues;i h- \vou id ·be !approp'iiate to: ~car~ that 1

G J th'ei·e 't\ias''liRan-im'ity1 atn·ahg th~~ h;hr.{ea c'ouns!el · 1lppeaH,~t'fo·r th'e p~rtie~~ in'~tiiuti6Rt siateS' Mi'd the·.- re'irned· solicitor·aerie}~, j~ippb'Ming rort th'e'"Unioh,.' of h1dll{'b\l itw~ asp~cts(the )fir'st'~is''thatfa·ii· il1e\ 'citizen.s' ll'a·~·e· !th~ right' i6t) est~blish ·~~Jcationafi Institutions bnde't\~Article ·1. 9(f)(g) _a~'(j A'rticle 26'_of ihe- c~hsiiHltlontari'Cfthe' se'coiid 'l!hhai the Judgrhe'nt (bf the' Co'n~tiiutiol1 Bencff· I. .. , ..... , 't o ·. i ,, , ; :" ~~· rl · .. ·I ' ' I • ..\ {' r· ,p'. .,,. h i·,-·-- '1'~ ·.. '1 /. ·~I H r of tillS Court In 'Untuknshnan 'J P. and Ors. v. State of A11dhra Pradesh ana

~~ · ; T.M.A: PAl FOUNDATION v. STATE Of'KARNA'tAKA [QUADRI, 1.] 74f~

Oi·s.; [1993]' i ··src:r645' requires.'re::consideration;·-though1 there··wasr·some A'\ debate -with;·regard to th'eiasp·ects which requ'ire·re-consideration. · .r:: '·

r~ ·L·: IS,.THERE·tA FUNOAMENT~L RIGHJ.l:O SET •.UP~. r:. , ~~. ,, ....EnucATIONAL INSTITUTioNs AND .IF so, UNJ?eR WHICH n· ·~..;.1v 1.;( · ~; ~ROVIS.ION? . r; ,[; i .'\J1"''"' ,f~ J ~fHfiCflt,l I.J!l'.; 1P'rh.i -;,1~ mv~n 1 •

• . 1. t-.,.·~_.r• i''l~.,.J •·· • )Bf".t7 ,.)t.~· r r~ ~· I ·.01"'1' '1rl Jif:·1"•\...' . ·~ 'j .. ·.··~_(,,·-~..·,;dl ·'· r.... 1 .-T~!"""""··~·, . · ···_: ~ ·;,t_ Bi On thts Issue I respectfully agree wtth the vtew expressed by Hon'ble ), .... r,-_.. ·.-r ·.("1.1 /f"':• ~ ·)7 ,.,., .~ -r ;_~.-~JJ'·_;,1t·•: · ~ •r--,r.· -.. ,r.,""t·; J,,'f ~ .. n·· • ......-.,,-~ Jlt • .,. • • ._.,._·

the Ch1ef Just1ce speaRmg for the maJonty. Part III of the Constttutton whtch • ,. ·<,'JL •,, • .t ..: ; •. t rtt t-,.,,.,h~ ., ~~~· ;..:. ·.. nt l.""). ~n•JI, 'Hit i.. 10' · "t'1i .•.-n ·,d1 embodt~s fundamental nghts does not spectfy such a nght v1s-a-v~s all ct~I~ens asf>Juch: H~\\levJr;'~e'sh~J( fe'te1'to'JA'rtlcCeS .t9:~;261and.3Q~havih'f~ be:rihgdJ 1

on~·thYs is~ue:J'··")' .,~Jr: j .. ,,,l;bqu; ·•· ·~. t,, ·.• : .. u ·''.~>J {,fJ01 ;,Jw•·n~ h..:nr:·~.·... :.>u' '; t, I:;,. r tc; <' ~··,,:, r. ,1 b,J'·jtJ~·n, . ·,:• ·,;;I..:,~IJ ..1JJ~ 01 o:;,tt.··:>.-'1Lrr~; :..nc; 'Ah ;Artklel'19 ofthe : Consiitution:~·insofar as it is relevant for the·prese·nt"'! diSCUSSibh,t(js as Urtderr:, .u <-~ ·,!"., .; 11 :L·~'-'•'IIl . .VLI. ~ltiJci.'( • (''!: \.. .\OIYt.t:,..r··· >JirltirC. '.:·, 1 ;i1d~ lt..,,Jn·~~ 'I) , !n··~~·:y, Jf~f 1.i . _,;e~~n'1i 11 n;..l -rnli ~Jli ..;h .. n -. ~:.f}~ 19:JPr?t~s~iC?_n_,pf..;~e~1~in.Jrig~,t,s regarding ~r,~~9~"! ~(sp~e.c~; ~~!r::.7J 1

HH. •,.,(l)r,.~!L·f~t!zC?nS sp~ll_.h~':'e.. t~e~.~ightt,j. !Jt;.;. ·,r,: ·!· ._. 1 d; 1, . !·~1 11 :; 1 •1.:.q -..;~'''(a) to'(t'Y:xxxl' .~:;,:-' ·;~: ,~.."!>"Xx~\ (~1 ,Jll. .1 n .• ,!.:vfonr x~~ ..11."t.;f·J)! •.·)~ ,-,'.{.l,~,Jil ?fll_,·: .... ~,t.\ ... · ,;, J·.r ..J'..-: ll.J •. t··,l<."~t. ''" -.nJ ·,,. q:•, 10 ,;: (g}tTO ·practiSe ~any·profession; or.~o carry ·on ·any . occupation;•trade r: ("' L. on business::.: ,· r1 '!llfll.~· ,q·w·) ~ 1 : •u .... JI.,Jt' ·,r/; ~d ... :m." ~ .• .,) • ·~· nt, ,,:t:>. . · · OJ t~ t •II '' • ·,·>i ·n:. • ;n nJ, tJ L ·~i ·mit:ud :.1b- ,; ''13 · •. ,, JJI ~ dl I_ ...•. __ .(2) .to .... (5)y,XXX , ~· .. ... " .-·. • ~ ..... rII. ·" r' XXX t ,·,.~;·J~~ 10 . . '"'1·, '11':. 't l.. •: ,.....r . XXX. i ,r -~ ;., .,.J qrrc. EJ ' "(6) N~othirig'''iif 'suo;;clause' .' nD 1 0f the' said !'clause·· shall ..·affe'ct'~ the11 tr'. ~ l,'o'perati~r1 of-any existing 1 1aw.~insofar:asl".irimposes:~or prevent :the State from making an)"'hiw 1iifiposlrig','Jin· th;iinteh:~sts1 ·o(thi-general" .J,1 · ;.,~~.b!i~: .~~,a.s,~n.~q!e.. r~~~ri~t~?PJ~. ?,n,~~~ ~~~ff!~~,.~f JP~~ r~~~.t..c~~frrred .. ,~~~ w,~Y, .t~~ rhs~i9; ,su~:~la~~e, ..~~~~'. 1 !~, 1 P,~~':ti~W~~~ Ln8.t~!~.g, !n<' !he1·s~i~}~.b::,, FI cia~~~. sh~l~, a~~~~,t.,.. th3 :·oP.:~~tj.~~(P[. ~n_y r !~~js~.i,n~.~~~~. .}ry~.~fas.,~.J~., }!'1 relates to, or prevent the State from making any law relating to, - .T~L;ll· :Jiidua M ·-;;-rdu2. r;.t':'\:.. -u~.il>J '•I :,"V6r1r.m 01 rnot/'J•. '! ·~:'• lui:~ _(i) , 11lh~rpr~f~~~,~~~~~?5~e~h~~c~,l ~qual!~.,c~ti~~~t~jC~~~~~ry 1f~r P.~~ctising any profession or carrying on ~,~Y o~~t~P,.a!~.9,n: 1~r,~d~,P;.P.~siness, or 'Jld H'L._.Ji·. ':i::t•• wonnb 1 ., ~no1 ~:rl ··lr ·~·-;m;,;~.i ;AlL ;((:. '11. '':' t. (li) the carrying on by the State, or by a Corporation owned or 1 ..... ;»~ ~'·~ ~ l tl;. J

controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial,' 'of citiiens or otherwise." t~.lrJi:g•b~ r:-:N., n1 ·. 'dhrli..·., .. ~i um; • · ~n 1l1nl" . tl ,, , ..~.t.d j 1~t.;pu 1d;~i r ~,.·r Articlejl9rc~mfers on.all_,citi:z:eos.trights. specifjed .in :s~b~clau~esr(a)r_to.:(g).~J H:J

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

A The fundamental rights enshrined in sub-clause (g) of clause ( 1) of Article 19 of the Constitution are to practise any profession, or to carry on any occupation, trade or business. We are concerned here with the right to establish educational institution to impart education at different levels, primary, ~. secondary, higher, technical, professional, etc. Education is essentially a '7 charitable object and imparting education is, in my view, a kind of service f B to the community, therefore, it cannot be brought under 'trade or business' ... nor can it fall under 'profession'. Nevertheless, having regard to the width of : the meaning of the term 'occupation' elucidated in the judgment of Hon'ble t the Chief Justice, the service which a citizen desires to render by establishing i educational institutions can be read in 'occupation'. This right, like other~ C .rights enumerated in sub-clause (g), is controlled by clause (6) of Article 19. t The mandate of clause (6) is that nothing in sub-clause (g) shall affect the:; operation of any existing law, insofar it imposes or prevent the State from i; making any law imposing, in the interests of general public, . reasonable A; -;;~

restrictions on the. exercise of right conferred by the said sub-clause and, in~.~ particular, nothing in the said sub-clause shall affect the operation of any f, D existing law insofar as it relates to or prevent the State from making any law{' relatiug to : (i) the professional or technical qualifications necessary for · practising any profession or carrying on any occupation, trade or business; or (ii) the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, E complete or partial, of citizens or otherwi~e. Therefore, it may be concluded that the right of a citizen to run educational institutions can be read into · "occupation" falling in sub-clause (g) of clause ( 1) of Article 19 which would be subject to the discipline of clause (6) .thereof.

Every religious denomination or a section thereof is conferred the right,,,;. F inter ali~, to establish_ and maintain insti~ution for r~ligious and charitable:~ purpose mcorporated m clause (a) of Article 26, which reads thus : o .. ~~,

"26. Freedom to manage religious affairs - Subject to public order~{. 'morality and health, every religious denomination or any sections .thereof shall have the right - ~ G (a) to establish and maintain institutions for religious and charitablef purposes; ,(b) tO (d) XXX XXX xxx" "'·'

The right under clause (a) is a group right and is available to every religious: denomination or any section thereof, be it of majority or any section thereof. •

T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [QUADRI, J.} 743

It is evident from the opening words of Article 26 that this right is subject to public order, morality and health.

The Constitution protects the cultural and educational rights of such minorities as are specified in Articles 29 and 30.

Article 29 deals with the protection of interests of minorities. It affords protection to minorities who have a distinct language, script or culture of their own and declares that they shall have the right to conserve the same provided they fonn a section of citizens residing in the territory of India. Sub-clause (I) of Section 29 is in the following terms :

"29. Protection. of interests of minorities - (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same."

We shall advert to clause (2) of Article 29 separately. D Article 30 of the Constitution confers a special right on the minorities to establish and administer educational institutions. For the purposes of this Article, religious or linguistic minorities alone are recognised for conferring rights under Article 30. Article 30 reads as under :

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

(I A) In making any law providing for the compulsory acquisition of. any property of an educational institution established and administered by a minority, referred to in clause (1 ), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. G (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language."

Clause (1) of Article 30 provides that all minorities, whether based on religiQn H

744' 1\ - · · suPREME couRT' REPon:Ts-·[2oh2J sui>P. 3 s.c.R. A'~ or language;t shall have the -ri'ght (i}' to establish· and·(ii) administer educational'· institutions of their choice. The amplitude of the right· is couched in very~: wide language. It is also a group right but any individual belonging to minorities,lHngu is tic ·~r religiau·s. may· exercise this right. fo~ the benkfit of his • ' • . ·~ . ~ ·J -r . ~f . :t' . " . fl •7 J, "I t '

own group. It IS significant to note that the nght conferred under Article 30 B~f is.~~~ ~ubj,ec~t.e~ ~~ -~ny !i.m!ta~i~ns.}he A.~i-~.l~spe_aks, ~f~'1'their choi~~:·. The ri~~t ~~-~11~.~~~blishr1 ~~d a~~ ~ry i:~~e.r: ~~.u~~ti~n~l, i~s~i.~u~io;n~ }~~. Qf. ~h~.; c~.oic; of q the mmor1ttes. The expression "mstJtut1ons . .1' ~.. . I ·~} #' I . ,. ofthe1r choice" means mstitutJons 1 • .., ) • .I } ) E '. • • f ~ j I • ~ I • I I i • _, ) 1 I' .. , ,' .. I

foU.~~~, b,~~~.m.o.f ~-e mi~ori~ies; _th,e ·":ord. ~ch~ic~·, ~n,com~a~s~s, ~oth_of -t~e 1 students as well as· or th_e.~yBe _q[ ~dJ~sa,tio~. t? b~ itpparted_ ~~ s~ch ed~~.~t.i~~~~ 2 institutions. ' c) -. \ I Oii . •I:_ ~~ I ; . :~ I 1'1., lp: ·,I~ 11".1 '·I :. ,;',.i .k,J~\._-1 • I ,• . ·

~ . It has 'been settled by ·a catena ~f decisions of this Court [In. Re The ' : · , -~ r l~~·. :' • ; ~,, . ~1 , I~ J ' j ' -~ • · ' ., , _ • _.,;, J i .)

Kerala Education Bill, [195 7-1959] SCR _995,_ ~ev.. Sidhajbhai Sabhai and J :.trll ..; :\ . . 1"1 ~~

Ors.· v. State of Bombay and Anr., (1963] 3 SCR 8?7• _Th~ 1 A.hmed,~~ad St. I '( ! l ,\ L ! • ., ' ! • '. + . • • • _.,.· ... 'I - I I I .(I'

Xavier's College Society and Anr. Etc. v. State ofGujarat and Anr., [1975] I SCR 173 and St. Stephen's College. v. Unversity of Delhi,· [1992] 1 SCCI/ D.··;s58 that Article 30 of the Constitution conferred special rights on the minorities (linguistic or-religious). The word 'minority' is not definediin the 'constitUtion but tliterally-Ht means 'a·· non-dominant' group.· It is a 'relative 'tern1i and· is ol referred to;~to represent the Smaller--of two numbers; sections grOap called ;. of 'majority'. In that sense, there may be political•rrtinorit>< reiigious minority, ·:1 E J li~g~ist1i~c. ~~.nor~ty, ~~~c: ~" ~ . .: ) . ,; .. . _. 1•• ; ,

. · ..The other clauses· of this Article will be disd.is-sed separately. ,. ~ ~I , ll • • I~ :, ;fl ~j .. 1'• ·I ' ,.) I•' • l. ' . ! + M J ' • • .. ' 1 1

With these few comments, I am in respectful agreement with. the majority judgment on issue No. 1. \d " d.duJ . . r,, ~~. -i~ ·.· '( {~·~-I .... ~ Lf1' . ,_ !' t ~ ~ ~ J ,----i . d ·.:

F I '' :~J,2.' .. 1flpqE~. UNN{~RISJ1NAN'S . CASE. R_EQUIRE"~ RE- I

1• ~,FO~S!DERA TIQN? ·.:.·~ .. '.1:1 .•• I .Jt'. .• .; ,,. l I • '.1 . , .. ,,:. ·• 'I .

,,_" 3-~HU.JN·CASE 0~ PRIVATE INSTITUTfON 1(UNAiDED AND I" ''P ,fl, ~IDEO) CAN 'tHERE BE'GO'VERNMENT-:REGULATIONS AND, IF SO, TO WHAT EXTENT? r!' .,._. :-~u L·.; 1. .• r G~) ..::~'l .. , 4.. t;dN ORDER TOt DETERMINEJTHE'- EXISTENCE "OF A ;1 r-.• ·.twRELIGIOUS OR, LINGUISTIC MINORITY.IN RELATION TO , ··.o~l·.l~-rARTICLE 30,~WHATIS·TO BE THE.UNIT,'THE STATE OR THE COUNTRY AS A WHOLE? ' .,.,u. ·•

HJ pnthese is~\les, I respectfully agree with·the reasonin·g:ana·conclusion ot.thel:

.n."; r - . T.M.A: .. . ' PAl ' . ·. FOUNDATION v. STATEOF.KARNAJ'AKA . '. .., . '• [QUADRI, J.] - n745

,.majority;•. "· t ~IJ·:: ·.· ·...-1 ~- ·1 t ... ~} ., . ..:: 1, t1 . 1:v.. · T' .-ii 1•) ~·- .~·b ·~·~ ·i 'i'~- lA ·I pt ~·~1 .. .., i ~~ .. d '-~i'J ~ .. ~":_.·'-J-~~ u 'i rf~ f"'. ' :LJ'·t ;. t '1 ~ · P• .11 ~ . -H~;f" h..1 ·~;··, . r)- J

•~t •.·.c·~· .s. ·nTO ~~ATE~JS:~TLC~~ 1H~~~G~p~~,.~F-~I~§_I?.P~!X~!_E r ; b:•. . _;_ f,v11~,9J~!.r~: I,~S'PTYT.IPNS. ,TO _~P¥INJS!~R.. ~~tE ·' REGULATED? - . , J·: ' , : . f . ~, I i · :l ,• t ~- • r · -... • . J,. f1 ~' 1_ I 1 p, . -i ' f ~ In regard to this issue and particularly on 'the interpretation ~of Article 29(2) lB .-vis-a-vis, clauses (l}and (2).of Article30 and the conclusion re~orded by the 1-Jll~J~ri-ty,. 1·h~y;, .·~~'!I~ r~~e~~ti~!ls, 1, ~~~id ~~t ~e!;~~d~ ~y;~if ~~--~~~e~ .)Vith . ~~e ~~j9Jityjudg~,et:tt_a,s,~.ell a~ !he ppin,i~n.s .o.f;_~y,}ea~e~ br~~~!~P - Kh~r:, ::-~~and -~~r~?s~-(~.ithJhe ~d,i~se,nti.~g,,op!nipg 1 of.yaria~~' J._ ~~.t~ ,';\'pic~~: A~hok .. Bhan, J. agreed. On-this .aspect, I agree .with .the reasoning and conclusion of ~·I,·-~u~- i~amed :~i~t~r'i~m~:P~I: ,-, . • -,• . . · • · .....- . ·J:';I .would.gi~e ~, - ., ; ; re~o~~.fo; th·i~, ~o;~lusion """•-~- · '1"" ~ I] , • _, ..._ w-~ ~ ' •· · • ·• --·~- :.c J~t~r. rl~!l .'J!; I'" I --:rf;r.: .. t , ,_'1"!,_.;! 1r [j')t r· ~ · I, .. n ,"'. ·i ,.~, '.h :1 i - ..... ( :-r·r) ·· ~·-··. . ..;(~ .. }1•,.-··'J -r·.- ~c I_: J;("' - ~ ~ •. ... n(· ~ -';; , Jql r (---:~n .,~-; ., In the result I am m respectful agreement wtth the answer recordea m ."-.,~he' tJl1ajority.judg~ept ........ ; ·f ..... ·. ._.- ,;, o~.question ,Nos.), 2, ~(a), 3(b) and 4 .~xcept to the ·'4. . . . 'I .. l ' . .• • -~ '1\. 1• - t ..• . - J ~...... I I ~ ../~

extent of reasoning and inteq>retation of. Articles0 29(2) and 30{1) on which '\he·~~~~~r i; ba~e(((agre~~ 'with ~e~peci~\vith ans~ers ~tQ q~~s-t_ioris.. 5(~}, \ D vl , 1,._:, .I ·· _.j • --~

5(c), 6(a), 6(b) and 7. In regard to question No.8, reconsideration of the ·judgment of:th~ Constitution,Benc~ iof this··CQl,Jrt ··in ·St.• Stephe_n's:Co/lege .(supra). ~hich telat~~ ~OJ aided~ minority ~nsti~uti9.QS, I ~~gree with..the_ answer ·.r~corqed in 'the majority ~judgment, except :to. tb~ ext,ent of interplay' bet~e·en -.Article ~9(2).-and.30(l) and,giving to the~a.~~horities p()~er to prescribe,a _:;E · :.percentagej1avipg. regard _to the type pf; institution and ;edqcational i n~e~s 9f ,,.min~n:jties..1 agre~_:aJso with. the 1 answ~r tp question_,No..:,9... or :,J i; .. •, ·~, J

) ·.;1 · 'lln""t~' r' · · ., -~~~ 1• · .: r ·. · f · · .I; ~- -· ·1, ~- · 4 'Jll· ·} u 'I' :I 'i ' • \i - ·~ '. j ., ~ !.l 1 h, With 'I l·~Jj :regard ·.,-Aq I to.an&wer ..... ,-: ., t I ti··, ' • to·.-,_·question. .:q No. "5(b) and1"1.1• • • .- .. r, ,r the~c,o~mon answ~r to u,_ , ' • .i 4 _•J.:,.;;. ~ ~ J ·l)tJ•·.~_;1i J".J·.J ~t.-

.•, question i.... _, ,; I~·_.• Nos.l· ·0. ·-.;,~nd :...;-~ 1I, in the light. of.u. the·, comments • , · . . . J H; . n. t u .· ,_: t .. :· , ' .. .; made above,J J r, 1 I wpuld ~ u~ ~ J J • · · t · i ... - .( ~

answe~ ~ha~ all th~ .citi2;ens have a right to. establish and administer eQucational lF 1.,.\1..., t J. .J I J. •~- ., · . . . : ·1 ., • , ,.. ''"· JLn ·11 , • tj ;p p t,~~ ·.' ,~o..~~ J .Jr'

institutions under Articles 19(l)(g) and 26. The minorities have ., ' >tU an additional ::. .<lt'lf!_ -·~ I

right to establish and administer educational institution 'of their choice' under Antcle -30( 1} Th~ e~~ent_,ofthese rights :are,. therefore,,~ifferent..A ~omparison . . of Articles 19~ 26 and 301 would show that whereas the.educational.institutions .J . . . .. .· - . . ' . .I • . • • • ' ' • . ' ' ·• - - • - ~- ...{ ·- ~ -

;~,st~blis~ed land; ~l!'!~ b.y.the_citize~s·unqer A_rticle ~9(1){g).and ArticJ~ 2<:l(a), G '/~re . s~bject:.to _.the, -discipline of Articles 1_9(6) and .26; there t~r~ p_o-,~uch l · li~i~~tiof!s jn. A:rticle 30 of the .Constitution, so-' in .that the righ~ c~nferred thereunder is absolute. However, the educational institutions established_by . the rninorjties under:Article.)O(l) .will bets.ubject Qnly ,to. ~he 1 reg\llatory measures-which should be consistent with Artide-30(1) of the Constitution. "My answer ;to que.stion s·(b)'is th.at the righ.t 'ofth'e'minofity'1institiitions to; H -~ . ~ . ~' 1 ~_t: ·~ :~

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

A admit students of the minority, if any, would not be affected in any way by receipt of State aid. I intend to dilate on this aspect of the matter in my separate reasoned opinion later. It is sufficient to state at this stage that subject to this, I agree with the common answer to question Nos. 10 and 11.

The following Judgment was delivered on 25.11.2002. B SYED SHAH MOHAMMED QUADRI, J. On October 31, 2002, while recording my answers to the eleven questions referred to the Bench of eleven learned Judges of this Court, I noted in a separate judgment, concurring with the majority except in regard to answers to question Nos. 5(b), 8, 10 and 11, that I would give my reasons later for agreeing on those aspects with the of opinion our learned sister Ruma Pal, J. and dissenting with the majority opinion as well as the opinion of learned brother Variava, J., with whom learned brother Shan, J. agreed. Here follow the reasons.

The difference of opinion mainly relates to the true interpretation of clause (2) of Article 29 and clauses (1) and (2) of Article 30 of the Constitution and their interaction.

Article 30 is a much discussed provision in Courts. It has been the subject matter of consideration by various High Courts as well as by this Court. I have already quoted clauses (1) and (2) of Article 30 and clause (1) E of Article 29 in the said judgment. To appreciate various rival contentions, first I shall examine the extent of the right conferred by clauses (1) and (2) of Article 30. It is a common ground that all minorities, wheth~r based on religion or language, are bestowed the right to establish and to administer educational institutions of their choice in clause (1) of Article 30. The following aspects ofthe right conferred therein on the minorities need to be noticed: (1) F to establish educational institutions; (2) which are of their choice and (3) to administer them.

The choice of educational institutions may vary from religious instruction to temporal education or a combination of both. Having regard to the width of Entry 25 of the Concurrent List*, the choice of educational institutions may be understood to include places for imparting education of their choice and at all levels • primary, secondary, university, vocational and technical,

• Substituted by the Constitution (Forty Second Amendment) Act, 1976 w.e. f. 3.1.1977 as follows : [Education, including technical education, medical education and universities subject to the provisions of entries 63, 64, 6:5 and 66 of List I; vocational and technical training of labour.)

i T.MA PAl FOUNDATION r. STATE OF KARNATAKA [QUADRI, J.] 747 '!r..·.·; · ..r _:: medical, etc. A The expression 'of their choice' includes not only the choice of the institution to be established and administered by the minorities, like institution .. for elementary, primary, secondary, university, vocational and technical and medical education, but also the choice ·of the students who have to be imparted education in such institutions. [See : The State ofBombay v. Bombay Education B Society and Ors., [ 1955] 1 SCR 568; ln Re: The Kerala Education Bill, [1957-1959) SCR 995; D. A. V. College, Jullunder etc. v. The State of Punjab and Ors., AIR ( 1971} SC 1737 and The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr., [1975] I SCR 173.

" The expression 'to establish' means to set up on permanent basis. The c ·.:·expression 'to administer' means to manage or to attend to the running ofthe . . affairs. A lucid connotation of this expression was given by Ray, CJ., in St . .\ · Xavier's case (supra) as under :

"The right to administer is said to consist of four principal matters. D First is the right to choose its managing or governing body. It is said '· that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled E to refuse admission to students. In other words, the minority institutions want 1o have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its prope11ies and assets for the benefit of its own institution." F In none of the subsequent decisions of this Court, this exposition was .. departed from.

The Kerala Education Bill (supra) is the first important case in which the right of the minorities (based on religion or language) under Article 29 G and Article 30 of the Constitution was exhaustively considered by this Court in its advisory opinion given in a reference under Article 143 of the ,, Constitution. After explaining the content of the fundamental right to establish '."~ ·and.administer educational institution of their choice contained in clause (I) of Article 30, it was observed, inter alia, that it could not obviously include the right ''to mal-administer." This qualification is implicit in Article 30(1) H

··SUPREME· COURT '·RE"PORTS.j[2002] SUPP. 3 S.C.R.

/'A and cannot be treated as a limitation on the right conferred thereunder: , ' ·~rl1 :lo There.is virtual unanimity. about.ithe·.impoi1 of Artkle·30,•C6riferment •ofthf:<right tO establish and administer edlicatiomiJ ,.j·nsfitutionS Wbu'id:become tan empty-formality.unless education·imparted· in such -~in~titutions yields fruitful •resul_ts!;by -enabling·JtheJ~studentsltrainees.·lof •sucH, institutio·ns~rto join·· the rB ,mainstream and to settle in'·Iife whether·,by pt.itsuing··higher studies ·or seeking employment-or otherwise. 'In the .system' prevalent. in ahnost all·countries, the · St~te~or universities prescribe syllabi in different- courses, conduct examinafiotls for a~arding ·c~rtificates and degree~ which-enahle · the· students/trainees .to pursue'higher educatiQn :or.-secure employment.or. practise ·any profession,or · C carry. on any occupation or business. !he _State or its agencies run the ·educat'ional 'institutions which impart irlstructions or trainingSThe State also recognise's"educational ·institutions' fun by· private management'for imparting 'edticat~ion or training iri -accordance with tile~ prescribe(f"Syllabus>It is onfy the recognised institutions that can send up· their ..-studentS"Jto appear in the examinatior:ts C()n_ducted f()r that purpose as per. the prescribeq syllabus; the o~t/'~x-ce~dd~ ! i~· regard~ to ,'reco·g~ltion . of the, i~stituti~·n·s. b~ing distance <D.~...... ..t ~ . .. · " , '; t ~· · ~.a11, ( ( ~ ,r •· ..... .·.,. t 4 '! egucation ~~· ,t,l) • which '"'i .• · for ~ sometime _past has 1 , been ;• gaining ground. I ~·~·~l. .. · Though, no '"

specipc ~. )j J f fundamental right for obtainirtg recognition I • r11/ I . ' I .J:l . •., ,,r, ' is. • conferred . ~ . U • in the J '

. <;::ons~i~ution, it cannot, h<;>wever,. be disp~ted that . r:ecognition of private \ il • ,.1Jb... J • • r · ~ . • ·. • . ·, ' •• l :· ·. l ~· .. r •· 1 •

educ~tional_ instit.utions, i~cludi!lg m!n~rity educ~ticmal_ ins~itl!tipns, is an ~~Jtj•,,· .l~;,.. ,-'' J,.i.; I • • 1~- l, " ... ..1' ·~ :,_1t ' · .,· .) I l t )r

:E '"~s1s;J1M~L c9p9?~it~~~ of th,e i"ig~tynd.~r_ ~rt}~!e~11 ! 9~,1 )(g~~ 2~(~) ~~~ 30( 1) of the_ Constitution: ''V*. rJ)t.· t ) . l, • Further, it is. widely ~ f· · .. ~ ~ . ~. •-~ ' ' ~- ~J\.) accepted_ that . ..• .,·.1 ~_, a lot'~ ·..Hof... t ~ducational p,.. ~ · ,•UlJ .. 1•• _J

, ~n~~~~t1i~~n~,~~~~t~err ~~ n?~~~~~?~it~~~.. or. ot:nin~~Hie,s_) ~iN ~RE ,?e able to tmpatt mstruct10ns wtthout finan~tal atd of the State. For thts purpose, each ;,~· .1 ·J 'ClJ't ....··r4l .:·IJI}· . .,,· ~ .. · . ) l:u·~·· . · •.. H.\ ·~ t.•F : :'tl;. _· ·~ .-·Hn:-P(,:~:.. State ~~(·) ~l in discharging t 1 ~ f 1 its constitutional obligation under Articles 45 and 46, i' ! ~·. ·' ti '..J' '. .1 f:~JJ:l ..., q·J·I ~ ·- '-.~' 1] ~ ~~ ll•. · ' ,· ,,.·

·subject to its economic capacfty, formulated policy fo~ -..~m?J ,pf aid to <F educational institutions and framed regulations. .,1;. /J rt(J!11"0C' 1 ; ,,: . ''IJI,·' 1 'fiJ -·:fl: . j(-1 ' '-•· ~ !'.> ' \,., _;,·j j ;.. .. . ) t(.- ';I' ' ')l The directive contained in clause (2) of Article 30 is that.•.•State _shaH not •tl ,.,..,ll._. . .,v in granting aid to educational institutions discriminate against any educational insti~utjon::On ,,the , ground 1that: it is . UJ1d~r .the m'!.nagement- of. a:,minority, ...w~~!her· based on religion or lang1:1age..It is a-non.~discriminatory!clal!;e . .The 1 G. righJ ,conf~rred under this .clause on,a minority educational institution'~s that if a:~ta,te ch<?_o.ses to grant aid to the.educationalinstitutions,··it shouldfnot be di.scrjmir1ated against.on 1t,he ground of being under tbe management·oCa mit_:~p[it):. I;Jo,~eyer; th_ e.aid, if any; has tQ be g[1lnted .to Jhe. minority·e,c,l_ucational . ins~t.ution.s :wit_hout .infringing .their constitutional,righLILis not ·in .iss1;1e, that 1•H· for,c.the._purpose ~of ;e,psuring .proper ~t!lisation of aid;.the State· has ~P?.,wer :to

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRI, J.] 749

make regulations which may include audit of accounts of recipient institutions A and other allied matters. N.Qnetheless, if in complying with the regulations of grant-in-aid, the minority educational institutions are required to shed their character as such institutions in any of the matters which directly fall under their administration, the State would be violating both clauses (1) and (2} of Article 30 of the Constitution. B In regard to the minorities seeking recognition and/or aid it was observed in The Kerala Education Bill (supra) that the minorities cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. In such matters, "the State can insist that in order to grant aid the State may prescribe reasonable regulations to ensure ·the excellence ofthe institutions to be aided". (Emphasis supplied) Thus, it is clear that regulations postulated for granting recognition or aid ought to be with regard to excellence of education and efficiency of administration, viz., to make certain healthy surroundings for the institutions, existenc•! of competent teachers possessing requisite qualifications and maintain,ng fair standard of teaching. Such regulations are not restrictions on the right but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert mal-administration in minority educational institutions and will, therefore, be permissible. This is on the principle that when the Constitution confers a right, any regulation framed by the State in that behalf should be to facilitate -exercise of that right and not to frustrate it.

Justice Mathew in St. Xavier's case (supra) (at page 266) observed :

"It sounds paradoxical that a right which the Constitution makers wanted to be absolute can. be subjected to regulations which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the G . right today to regulations dictated by the protean concept of State necessity as conceived by the majority would be to subvert the very purpose for which the right was given."

The sine qua non of a good and efficient administration is that it is fair and ·transparent. Therefore, it will be in the fitness of things and in the H

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

A interest of good administration of the minority educational institutions (whether aided or unaided) to frame their own regulations in regard to admission of students to various courses taugh.t in their institutions, notify fees to be charged and concession provided for poor students, like granting total and/or half exemption from payment of fees scholarships, etc., service conditions of B teachers and non-teaching staff and other allied matters. This will inspire confidence in both the State and its agencies as well as the public and the student community. The most damaging allegation against non-government educational institutions is charging of capitation fee which has become the talk of the town throughout the length and breadth of the country. So much so that the'term 'capitation fee' has become synonymous with crime. The C concept of capitation has its origin in taxation; earlier there used to be capitation tax per person. Educational institutions, it is stated, oblige guardians/students to pay, in addition to the notified fees, varying amounts depending upon the courses in which admission is sought; such amounts are nothing but per capita collection for admission to a given course in an educational institution and can properly be tenned as capitation fee. This is reprehensible and cannot be tolerated. Now, in view of the majority judgement different institutions may notify different fee for the same course and the same institution may notify different fees structure for different courses. If the evil of collection of capitation fee is done away with by the private educational institutions (both non-minority and minority) much of the controversy about intervention by the State and complaints by citizens could be avoided. Collection of capitation fee being'the worst part of mal-administration can properly be the subject- matter of regulatory control of a State. Receiving donations by an educational institution, unconnected with admission of students, could not obviously be treated as an equivalent of collection of capitation fee.

F Before proceeding further, it will not be out of place to mention here that there is a perceptible shift in the stand of the Union of India as could be discerned from the written submission filed by the then learned Attorney- General on behalf of the Union of India when these cases were heard earlier by another Bench and the contentions n·ow urged by the learned Solicitor G General appearing for the Union of India. He opened his arguments by conceding, inter alia, that in regard to important· constitutional questions stare decisis principle would apply; that the following propositions laid down in The· Kerala Education Bill's case and St. Xavier's case (supra) do not require re-consideration, that: (i) Article 29( l) does not govern Article 30(1) textually, _. historically and conceptually; (ii) minority institutions need not confine admission of students to their members; (iii) in the process of grant

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRI, J.] 751

of aid, minority educational institutions cannot be denuded of their minority character; and (iv) the extent of regulatory measures implicit in Article 30(1) and the tests relating thereto have been correctly laid down. He, however, contended that the right conferred under Article 25 in regard to freedom of conscience and freely to profess, practice and propagate religion, is certainly a ereater right; so also the right conferred under Article 26 to manage religious affairs; when these rights are subject to the limitation contained therein, surely the rights under Articles 29 and 30 would also be subject to the same limitations. According to him, presence or absence of the limitations specified in Articles 25 and 26 would make no difference when the question of exercise of those rights arises. It was further urged that in regard to Article 25 which deals with core right when the secular activities associated with it could be regulated and restricted, the right to establish an educational institution to impart secular education, being in itself a secular activity, should also be amenable to the same regulatory power of the State and that the limitations contained in Articles 25 and 26 could be read in Article 30(1) of the Constitution. D These contentions appear to be attractive but, on a careful ·scrutiny, they are found to lack any substance. The framers of the Constitution, who have subjected the fundamental rights under Articles 25 and 26 to limitations contained therein, chose not to subject Article 30( 1) to any such limitation. In incorporating the right of the minorities, whether based on religion or language, to establish and administer educational institutions 'of their choice' which obviously postulates secu Jar education, they were not unmindful of the fact that the right which was conferred under Article 30 was also in respect of a secular aspect. It would be erroneous to assume that in placing limitations on certain fundamental rights and omitting to do so on certain others, if as contended by the learned Solicitor General they are inconsequential, they carried on the exercise m futility. Such an assumption cannot be made in respect of any legislation, much less can it be assumed in regard to the Constituent Assembly. These contentions are, therefore, untenable as being opposed to the well·settled principles of interpretation of a Constitution. So also, the contention that though the Constitution itself has not subjected the rieht under Article 30 to the regulatory control of the State or to other limitations as in Articles 19, 25 and 26. the State's regulatory power and other limitations incorporated in the aforementioned articles should be read in Article 30 of the Constitution or that incorporating limitations in Articles 19, 25, 26 and not incorporating them in Ar1icle 30 is of no significance, cannot but be rejected. It needs no emphasis to bring home the point that H

752 SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A when the Constitution itself has designedly not imposed or permitted imposition of any limitation or restriction by the State on a fundamental right under Article 30, neither the Court by process of interpretation nor legislation much less an executive regulation can be permitted to cut down the width of the constitutional right termed as a fundamental right. The following B observation of DasJ CJI., in The Kerala Education Bill (supra), will be apposite here,

"It is not for. this Court to question the wisdom of the supreme law ?f the land. We the people of India have given unto ourselves the Constitution which is not for any particular community or section but c for all. Its provisions are intended to protect all, minority as well as the majority communities. There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minoriti~s concerning their language, culture and religion .. These concessions • must have been made to them for good and valid reasons."

D The legislative power of a State or Union is subject to the fundamental rights and the legislature cannot indirectly take away or abridge fundamental rights which it could not do directly for granting either recognition or aid. It is in that context this Court also observed, ' '

"So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby· honour our sacred obligation to the minority communities who are of our own."

Having extracted sub-clause (g) of clause (1) and clause (6) of Article 19, Article 26 and Article 30, I had pointed out that a comparison of these provisions would show, whereas the rights conferred in Article 19(l)(g) and Article 26(a) were made subject to the discipline of Articles 19(6) and 26 respectively, that no such limitations were to be found in Article 30 of the Constitution and held, no such limitation could be read in Article 30( 1) by any process of interpretation, therefore, in that the right conferred under the last mentioned provision would be absolute. If I may say so, it has been so treated rightly in a catena of decisions of this Court. ~his fact is evident from a plain reading of those provisions and admits of no debate. Indeed, the same fact is presented with difference in phraseology by this Court in many judgments. Even the majority judgment in these cases observed as follows:

H. "Unlike Articles 25 and 26, Article 30(1) does not specifically state

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRI, J.] 753

that the right under Article 30(1) is subject to public order, morality and health or to other provisions of Part III. This sub-Article also does not specifically mention that the right to establish and administer a minority educational institution would be subject to any rules or regulations."

There is, however, divergence of opinion in the dicta of a few judgments of this Court on some facets of the right conferred by the Constitution under clause (1} of Article 30 of the Constitution. The difference relates not merely to terminology - whether to call it an absolute right subject to reasonable regulation to achieve excellence and prevent mal-administration or not to name as an absolute right because it can be subject to regulation- but extends to the scope and the nature of the regulatory control by the State.

The contention urged by the Union of India also raises the issue of subjecting the minority educational institutions to regulatory control the of State by regulations. D I have expressed the opinion that the right conferred under Article 30(1) is absolute as no such limitations as are placed on rights conferred under Articles 19, 25 and 26, are to be .found in Article 30(1); this is, however, not to deny the power to the State to frame regulations in the interest of minority educational institutions with regard to excellence of standard of education and check mal-administration. E Another important case in which the question of interpretation of Article . 30 came up for cons.ideration before this Court is Rev. Sidhajbhai Sabhai and Drs. v, State ofBombay and Anr., {1963] 3 SCR 837. In that case the complaint of the petitioners, representing an aided institution imparting education in teachers training, in a petition under Article 32 of the Constitution, before a F Constitution Bench of six learned Judges, was against the order of the Government of Maharashtra requiring the institution to reserve 80 per cent of the seats available in it on the pain of losing the aid and recognition for non~compliance with the directive. The right of the minority institution that was affected was to admit the students of their choice. Justice Shah (as he 0 then was) speaking for the Court held,

"Unlike Article 19, the fundamental freedom under clause ( 1) of Article 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious H

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

A have by Article 30( 1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30( 1) would to that extent be void."

Neither in that case nor in any of the cases before us did the minority educational institutions pitch their claim so high as was commented upon by the learned Solicitor General and reflected in the majority judgment. He, on his own, fonnulated hypothetical contentions as if they were urged by minority institutions, too unrealistic to be sustained, and shot them down one by one. It was .never the case of minority educational institutions that they were above the law of the land; no one contended that the building regulations or municipal Jaws or other laws of the land, civil or criminal, would not apply to them. Yeritably what all was contended before the said Constitution Bench, was su~med up thus: the absolute term in which. Article 30(1) is enunciated, would not deprive the State, especially when it pays grant and affords recognition to it as an educational institution, to impose reasonable regulations but such regulations can only be in the interest of the institution to make it an effo~tive educational institution so as to secure excellence of the training imparted therein and that they could not be in the interest of outsiders. (empha~is supplied) This submission in Rev. Sidhajbhai's case (supra) found favour from the Court and it was held (at page nos.856-857), E "The right established by Article 30(1) is a fundamental right declared :in tenns absolute. Unlike the fundamental freedoms guaranteed· by .Article 19, it is not subject to reasonable restrictions. 1t is intended to :be a real right for the protection of the minorities in the matter ·of '~etting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called ; regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If .every order which while maintaining the formal character of a minority ·. institution destroys the power of administration is held justifiable _because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30( 1) will be but a "teasing illusion", a promise of unreality. Regulations i which may lawfully be imposed either by legislative or executive

action as a condition of receiving grant or of recognition must be ·directed to making the institution while retaining its character as a H r' minority institution effective as an educational institution. Such

T.M.A. PAl FOUNDATION''· STATE OFKARNATAKA [QUADRI, l.) 755

regulation must satisfy a dual test- the test of reasonableness, and the A test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it." (Emphasis supplied) B To make the right under Article 30 real and effective, the regulatory measures have to be consistent with that right. Regulations could be aimed at excellence of education and efficient administration of such institutions as that would be in the interest of the educational institutions of the minorities. Any regulation which is not in the interest of the minority educational institutions but is in the interest of an outside agency would whittle down the right of the minority to administer the institution and would be violative of Article 30 of the Constitution. In my respectful view the true test to judge the va1idity of any regulations imposed by the State for granting recognition and/ or aid is the dual test laid down in Rev. Sidhajbhai's case (supra), viz., (i) the regulations must be reasonable~ and (ii) it must be regulative of the educational character of the institution and conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. To the same effect are the following observations of Mathew, J. in St. Xavier's case (at page 267): E "In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation namely, the excellence of the institution as a vehicle for general secular education of the minority community and to other persons who resort to it. The F question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypothesis the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational G of institutions in respect their educational standards."

(Emphasis supplied)

The right under Article 30, submitted th~ learned Solicitor General, could not be placed so high as to be above the 'public interest' and the 'national interest'. A scathing criticism was made on the use of the said H

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

A expressions to contend that the right could not be above the law of the land. A few learned counsel also expressed their concern for employing those expressions in regard to the right of the minorities.

At the outset, l may mention that it will not be correct to ask whether the constitutional right is above the law. The proper question to ask would B be whether a law could be above the Constitution so as to contravene a fundamental right. The answer, in my view, cannot but be in the negative.

To appreciate the contention and concern, it will be necessary to unravel the connotation ofthose expressions. They are not technical words, so they have to be understood ·!ike any other ordinary English words. The expression C 'public interest' means: of concern or advantage to people as a whole; the meanings of that expression are given in the Law Lexicon, 2nd Edn., Reprint 1 2000' at p.1557 as follows :

"Public interest means those interest which concern the public at large. D :I. Matter of public interest 'does not mean that which is interesting as gratifying curiosity or love of infonnation or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected'_(per Campbell, CJ., R. v. Bedfordshire, 4E and B, 541, 542). E The expression 'public interest' is not capable of precise definition and has not a rigid meaning and is elastic and takes its colours from " the statute in which it occurs, the concept varying with. the time and . , state for society and its needs. Thus what is 'public interest' today '" may not be so considered a decade later. State ofBihar v. Kameshwar F Singh, AIR (1952) SC 252 (Companies Act (I of 1956), Sec. 397) That which concerns welfare and rights of the community or a class thereof (8.124, Indian Evidence Act and Art.302, Constitution.) The words 'public interest' in S.47 mean interest of the public which G uses the stage carriage and not the public in general. Mohammad Raihan v. State of Uttar Pradesh, AIR (1956) All. 594, 595. [Motor .. , Vehicles Act, 1939, S.47] A subject,. in which the public or a section of the public is interested, becomes one of public interest. Kuttisankaran Nair v. Kumaran Nair, H AIR (1965) Ker 161,165. [Penal Code (1860), S.499, Exceptional]".

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRI, J.] 757

The expression "interest of the nation" means something which concerns or is of advantage to the nation. 'Public interest' is a very wide expression, so also the national interest; their correct meaning has· to be ascertained in the ,.., context in which they are used. They cover matters of little significance as well as matters of moment. These expressions will have to be distinguished from 'public safety', 'national security' and 'national integrity' which are paramount and are undoubtedly matters of public/national interest. But every public/national interest does not fall within the realm of public safety, national security and national integrity. For example, a legislation conceived to give effect to the policy of nationalisation of primary/elementary schools imparting education upto level Xth by any State or the Union of India may convincingly be in public interest but it would not be consistent with Article 30 as it is annihilative of the interest of the minorities. In the same way, the policy of ... requiring 'Hindi' to be the medium of instruction throughout the country, may conceivably be in the national interest but not in the interest of linguistic minority institutions as it would destroy their character of being minority institutions. Such examples can be multiplied. If the expressions employed by Shah, J. in Sidhajbhai 's case (supra) are properly understood in the context in which they are employed, there can be no legitimate apprehension and consequential grievance againgt them. No reasonable person, in my view, can interpret them as authorising the minority educational institutions to reso~ to activities . which-would be detrimental or subversive of public safety or national security or national integrity. Such exaggerated and out of proportion contentions urged to challenge the correctness of test laid down by Shah, J. in Sidhajbhai 's case (supra) cannot but be rejected as being wholly misconceived and devoid of merit.

In this connection, it would be useful to quote the following comment of a great expert on Constitutional Law - H.M. Seervai*: F "The reference to the absolute terms of Article 30( 1) was not meant to negati~e all regulation of the right, but to indicate the nature of the regulations which were permissible. Our discussion of Article 19 has shown that restrictions which can be imposed in the public interest on the rights conferred by Article 19(1) may not only restrict the G enjoyment of those rights but may totally prohibit the exercise of those rights. The absolute language of Article 30( 1) precludes restrictions of such a character being imposed on the right conferred by Arti~le 30(1). But, as stated earlier, rights conferred even in absolute • Constitutional Law oflnrlia by H.M. Seervai. 3rd Edn., para 13.53 at pp. 971-972. H

758 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A terms have to be exercised in an organized society governed by law, and this involves regulation of rights which do not hinder, but help, the effective exercise of those rights. It follows from this, that Shah, J.- was right when he held that regulations which can be imposed.on minority institutions must be conceived in the interest of tho.se institutions and not in the interest of the public or the nation as: a B whole." '

For all these reasons, I am, with great respect, unable to subscribe 'to the view; in the majority judgment, "any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read i.nto. Article 30. The right under Article 30(1) cannot be such as to override the national interes~ or to prevent the government from framing regulations in ,.. that behalf'. f • There can be no demur to the dicta that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion but to say that the right under Article 30 is not so absolute as to be above the law, would, in my resp•~ctful view, amount to conferring supremacy to the ordinary law over the provisions of the Constitution which would be contrary to Article 13 of the Constitution, as1the E laws whether existing or made in exercise of power conferred by the Constitution have to be consistent with the provisions of the Constitution and 1 Part III' which includes Article 30 and not vice versa. '

While the law declared by the Constitution Bench of this Court in Rev. Sidhajbhai 's case (supra) was holding the field for about 12 years, it appears F that in the case of St. Xavier's (supra) the attention of this Court was invited to the opinion expressed by Dr. Justice P.B. Gajendragadkar, former Chief Justice of this Court, to the effect that the decisions of the Supreme c·ourt on the interpretation of Articles 29 and 30 required reconsideration. Taking note of the comment of the learned former Chief Justice, the said case was referred G t~ the Constitution !3ench of nine learned Judges. After exhaustive discussion of historical background, provisions of the Constitution and surveying various judgments of the High Courts and this Court, the majority followed the law declared in Rev. Sidhajbhai 's case (supra). In that case, Xavier's College and the College Society challenged the validity of certain sections particularly Section 33A(I )(a) (providing for selection of Governing Body, etc.), Sections H 40,4 I, 5.1 (A)(l) & (2) and 52(A) of the Gujarat University (Amendme~t)

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA (QUADRI, J.] 759 Act, 1972, principally on the ground that they violated the petitioners' rights under Article 30. It was held, inter alia, that Section 33A(1 )(a) did not apply to minority· institutions and that Sections 40, 41, 51 (A)( 1) & (2) and 52A were violative of Article 30( 1). The Court also held, that the grant, recognition or affiliation of an educational institution which was protected by Article 30(1) could not be made dependent on the religious and linguistic minorities accepting conditions which would involve the surrender by such minorities of the rights ronferred on them under Article 30( 1). Among the decisions referred to and approved in that case is the decision in D.A. V. College case (supra) wherein it was held that the directive for the exclusive use of the Punjabi language in the Gurrnukhi script as the medium for instruction in all colleges of the University directly infringed the petitioners' right to conserve the~r script and administer their institutions. The Court approved the judgment in State ofKerala v. Very Rev Mother Provincial Etc., [1971] 1 SCR 734. In that case, the necessity and importance of regulatory measures for affiliation intended towards securing uniformity, efficiency and excellence was explained. In Rev. Father W. Proost and Ors. v. State of Bihar and Ors., [ 1969] 2 SCR 73 Section 48-A of the Bihar State University Act, 1960 was struck down for D ........ completely removing the autonomy of Xavier's College (a different college) which was protected under Article 30, holding that the scope of Article 30 could not be restricted with reference to Article 29. The .case of Rt. Rev. Bishop S.K. Patro and Ors. v. State of Bihar and Ors., [1970] 1 SCR 172) was also referred to with approval. The decision in the case of Bishop S.K. E Patro (supra) was that the State of Bihar could not require a minority school to constitute a managing committee for the school in accordance with the Government's wishes. In All Saints High School, Hyderabad etc. etc. v. Govt. of Andhra Pradesh and Ors. etc., [ 1980] 2 SCR 924, this Court struck down the regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority under the Andhra Pradesh Private Education (Control} Act, 1975 as being violative of Article 30(1). It was held that the regulation conferred an unqualified power upon the competent authority and the appellate authority to enable the views of the management being substituted by the views of the appellate authority. Chandrachud, CJ. observed, in his judgment, that the law was settled in St. Xavier's case (supra) and Lilly Kurian v. Sr. Lewina, [ 1979] 1 SCR 820, and that they had merely to apply the law laid down in the said cases to the facts of that case. The above discussion leads to the conclusion that the limitations H

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

A incorporated in Articles 19, 25 and 26 cannot be read into Article 30. What Article 30 predicates is institutional autonomy on the educational institutions established and administered in exercise of the right conferred thereunder, which cannot be interfered with by the State except to the extent of framing reasonable regulations in the interest of excellence of education and to prevent B mal-administration. I shall now advert to clause (2) of Article 29, which may be quoted here: "29. Protection of interests of minorities.-

c (1) XXX XXX XXX

(2) No c1t1zen 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." D The mandate contained in this clause is 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. It is obvious t~at the mandate does not apply to a private educational institution which is not receiving aid out of State funds. Article E 29(2) confers an individual right on every citizen to seek admission into any educational institution maintained by the State or receiving aid out of State funds.~It embodies the principle ~f equality in a truncated form and, therefc;»re, a citizen can be denied admission by an educational institution whether maintained by the State or receiving aid out of Stat~ funds on ground other than the prohibited grounds - religion, race, caste, language or any one of them.· Thus, a citizen can be denied admission on the ground that all the seats in the ·institution are already filled; the antecedents of the citizen seeking admission in the institution are not good, or his presence in the educational institution will not be conducive to proper administration of the institution; his merit as disclosed in the qualifying examination or in an examination conducted by such educational institution, or merit as ascertained on the basis of interview conducted by such educational institution, falls short of minimum fixed by such a institution and the like. The word 'only' suggests that if it is found that the denial of admission by any educational institutions maintained by the State or receiving aid out of State funds is not merely on any of the prohibited grounds but also on some additional grounds, not being irrelevant or fanciful, the mandate of clause (2) of Article 29 is not violated.

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRI, J.] 761

In Bombay Education Society's case (supra), a Constitution Bench of A. this Cour:t applying the test formulated by Lord Thankerton in the case of Punjab Province v. Daulat Singh, (1946) LR 73 I.A. 59 held,

"Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil is not English. Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language."

It follows that the denial of admission by an institution directly based only on one of the forbidden grounds specified in Article 29(2) is impermissible. J This clause is a qualified extension of the principle enshrined in Articles 14 and 15(1) of the Constitution. It affords a limited protection to citizens against discrimination on the enumerated grounds of religion, race, caste, language or any one of them. The right to equality contained in Article 14 and I?-ot to be discriminated against in Article 15( 1) is general and is available only against the State. The limited right conferred on the student community under clause (2) of Article 29 is available not only against the educational institutions maintained by the State but also against the private educational institutions receiving aid out of State funds. In contra-distinction to Article E 14, which is an all pervading general provision and Article 15(1), clause (2) of Article 29 has a limited scope. The opening words of this clause show that the directive contained therein is expressed in the negative and is addressed to 'any educational institution'. That expression is general in nature and in its ordinary meaning embraces all educational institutions. The educational F institutions can be conveniently classified into:- State maintained institutions, private aided institutions and private unaided institutions; :unaided minority institutions and aided minority institutions. The expression 'any educational institution' is a genus of which an aided minority educational institution is a species. Having regard to the provisions of clauses ( 1) and (2) of Article 30, the classification has nexus with the object sought to be achieved by clause G (2) of Article 29.

The pertinent question that remains to be considered is the interaction of clause (2) of Article 29 and Article 30 of the Constitution in regard to minority educational institutions established and administered thereunder and receiving aid from a State. H

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

A Before proceeding to consider the interaction of clause (2) of Article 29 and clauses (I) and (2) of Article 30 of the Constitution, it will be well to bear in mind the following principle: .

"The correct way to interpret an Article is to go by its plain language and lay bare the meaning it conveys. It would no doubt be useful to B refer to the historical and political background which supports the interpretation given by the court and in that context the debates of the constitutional assembly would be the best record of understanding all those aspeCts. A host ofconsiderations might have prompted the people of India through members of constituent assembly to adopt, enact c and to give to themselves the Constitution. We are really concerned with what they have adopted, enacted and given to themselves in these documents. We cannot and we should not cause scar on it which would take years for the coming generations to remove from its face."

D [Emphasis supplied]

Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the E State to·· do all it could to educate every section of citizens who need a helping hand in marching ahead along with others.

I shall now examine the case put forth on behalf of aided minority educational institutions that clause (2) of Article 29 does not apply to institutions established under Article 30(1) of the Constitution so as to deprive F them of their choice to admit students of their community for whose benefit the institutions exist. Minority educational institutions receiving aid from the State can' no longer be regarded as 'other authorities within the meaning of I