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

The second proviso imposes the condition that at least 40 per cent E ·of the annual admissions must be made available to the members of communities other ·than the Anglo-Indian community. Likewise Art. 29(2) provides, inter alia, that no citizen shall be denied admission into any educational institution receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. These F are the only constitutional limitations to the right of the Anglo- Indian educational institutions to receive aid. Learned counsel ·· appearing for two Anglo-Indian schools contends that the State of Kerala is bound to implement the provisions of Art. 337. Indeed it is stated in the statement of case filed by the State of Kerala that all Christian schools are aided by that State and, therefore, the Anglo- G Indian schools, being also Christian schools, have been so far getting from the State of Kerala the grant that they are entitled to under Art.

337. Their grievance is that by introducing this Bill the State ofKerala is now seeking to impose besides the constitutional limitations mentioned in the second proviso to Art. 337 and Art. 29(2), further and more onerous conditions on this grant to the Anglo-Indian

T.M.A. PAl FOUNDATION''· STATEOFKARNATAKA[S.N. VARIAVA, J.] . 839 educational institutions although their constitutional right to such grant still subsists." .(emphasis supplied)

47. In this case it was argued on behalf of the State that as the minority institute received State aid it was bound, by virtue of Article 29(2), to admit students of all communities and thus did not retain its minority character. That Article 29(2) applied to a minority educational institute was not denied. The B argument that, it lost its minority character because it admitted students of other communities, was repelled in the following tenns. ·

"By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the - object of conservation of the distinct language, script and culture o~ C a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Art. 30( 1) of the Constitution."

Thus even in this case it has been accepted and held that Article 29(2) applies D to mir:writy educational institutions established under Arti~le 30. It has been held that merely because students of other communities are admitted, the institute does not lose its minority character. In this case it was also held that State can prescribe reasonable regulations. In this case regulations which provided for qualifications of teachers and which provided for State Public E Service Commission to select teachers in aided schools were upheld. Thus even in this case it is accepted that Article 29(2) would govern Article 30(1 ).

48. In Rev. Sidhajbhai Sabhai v. State of Bombay reported in [1963] 3 SCR 83 7, the petitioners belonged to the United Church of Northern India. They maintained educational institutions primarily for the benefit of the F Christian community. Admittedly these institutions did not receive State aid. Therefore, the question of Article 29(2) and its applicability to Atticle 30 did not arise. On the contrary (as is set out on page 840 of the Report) it was an admitted position that these institutions did not deny admissions to students belonging to other communities. The Government of Bombay issued an order directing all private training colleges to reserve 60% of the seats for G trainee teachers of the schools maintained by the Board. It was held that this Order violated rights under Article 30. All observations made in this case are in this context. They cannot be drawn out of context to hold that even where a minority institute receives aid the Constitutional mandate of Article 29(2) would not apply. In this case also it is held that the rights under Article 30( 1) H

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A are subject to reasonable restrictions and regulations. It was held that restrictions in the interest of efficiency, discipline, health, sanitation, p!Jblic order etc. could be imposed. \

49. In Rev. Father W ?roost v. State ofBihar reported in [1969] 2 SCR 73, the petitioners maintained St. Xavier's College which was affiliated to the B Patna University. With effect from 1st March, 1962 Section 48-Awas introduced. Under this Section a University Servic;:e Commission was established for affiliated colleges. Sub-clause (6) of Section 48-A provided that appointments, dismissals, removals, termination of service or deduction in rank of teachers of an affiliated college should be made by. the Governing body of the college on the recommendation of the Commission. Further, sub-clause ( 11) provided c that all disciplinary actions could be taken only in consultation with the Commission. The petitioners challenged the virus of the provision and claimed -~ that it affected their rights under Article 30(1) of the Constitution. Whilst the Petition was pending in this Court; Section 48-B was introduced in the Bihar · State Universities Act, which provided that appointments, dismissals, removals, termination of service or reduction in rank of teachers or disciplinary measures could only be taken with the approval of the Commission and the Syndicate of the University. This was also challenged. Thus in this case the interplay of Sections 29(2) and 30(1) did not come into question at all. In this case it was an admitted position that the college was open to non-Catholics also. One of the arguments raised on ·behalf of the State was that since the admissions were not reserved only for students of the Jesuits community the college did not qualify for protection under Article 30(1 ). This argument was negatived by holding that merely because members of other communities were a.dmitted into the institution did not mean the institution lost its minority character. This case thus shows that even if members of other community are admitted into the institution. the institution would still remain a minority institution which is under the management of the minority.

50. In Rev. BishopS. K. Patro v. State ofBihar reported in [ 1970] 1 SCR 172, an educational institute was started by a Christian with the help of funds received from London Missionary Society. The question was whether ·the institute was not entitled to protection of Article 30( 1) merely because funds were obtained from United Kingdom and the management was carried on by some persons who may not have been born in India. This Court held that rights under Article 29 could only be claimed by Indian citizens, but Article 30 guarantees the rights of minority. It was held that the said Article does not refer to citizenship as the qualification for members of the minority. This case H

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [S.N. VARIAVA,J.] 841

therefore does not deal with the question of the interplay between Articles A 29(2) and 30(1 ).

51. In the case of State of Kerala v. Very Rev. Mother Provincial reported in [1971],1 SCR 734, the constitutional validity of Sections 48, 49, 53, 56, 58 and 63 of the Kerala University Act was challenged as violatin~ the rights under Section 30(1). In this case there is no discussion regarding the B effect of Article 29(2) on Article 30. In this case also it was held that rights under Article 30(1) are subject to reasonable restrictions.

52. The case of D. A~ V. College v. Punjab, reported in [ 1971] Supp. SCR 677 does not deal with Article 29(2) and its effect on Article 30. In this case C Punjabi was made the sole medium of instruction and examination under the Punjab University Act. It was held that this violated the rights under Article 29(1) as well as Article 30(1) inasmuch as the right to have an educational institution of a choice includes the right to have a choice of the medium of instruction also. D

53. In the second case of D.A. V. College v. State of Punjab, reported in [1971] Supp. SCR 688 the Dayanand Anglo Vedic College Trust was formed to perpetuate the memory of the founder of the Arya Samaj. It ran various institutions in the country. The colleges managed and administered by the Trust were, before the Punjab Reorganisation Act, affiliated to the Punjab University. After the reorganisation of the State of Punjab in 1969, the Punjab E Legislative passed the Guru Nanak University (Amritsar) Act (21 of 1969). Colleges in the districts specified ceased to be affiliated to the Punjab University and were to be associated with and admitted to the privileges of the new university. Sub-section (2) of Section 4 of the Act provided that the University "shall make provision for study and research on the life and teachings of Guru p Nanak and their cultural and religious impact in the context of Indian and World Civilisation; and sub-section (3) enjoined the University "to promote studies to provide for research in Punjabi language and literature and to undertake measures for the development of Punjabi language, literature and culture". By clause 2(l)(a) of the Statutes framed under the Act, the colleges were required to have a regularly constituted governing body consisting of G not more than 20 persons approved by the Senate including, among others, two representatives of the University and the principal of the College. Under Clause (1)(3) if these requirements were not complied with the affiliation was liable to be withdrawn. By clause 18 the staff initially appointed were to be approved by the Vice Chancellor and subsequent changes had to be reported H

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A to the University for the Vice-Chancellor's approval. And by Clause 18 non- government colleges were to comply with the requirements laid down in the ordinance governing service and conduct of teachers. It was held that Clause 2( I)(a) interfered with the right of the religious minority to administer their educational institutions, but that Clause 18 did not suffer from the same vice. • It was held that ordinances prescribing regulations governing the conditions B of service and conduct of teachers must be considered to be one enacted in the larger interest of the institution to ensure their efficiency and excellence. It was similarly held that sub-sections (2) and (3) of Section 4 do not offend any of the rights under Articles 29(1) and 30(1 ). It must be observed that, whilst dealing with the Articles 29 and 30, this Court observed as follows: c "It will be observed that Article 29( I) is wider than Article 30(1 ), in • that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29( 1), the rights guaranteed - under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or rece;ves aid out of State funds, on grounds only of religion, race, caste, language or any of them.,. (emphasis supplied)

54. Thus, even in I 971, this Court has held that Article 29(2) governs Article 30( 1). The law laid down in Champakam Dorairajan 's case, in Bombay Education Society's case and in Kerala Education Bill's case has been reaffirmed. Till this date no contrary view has been taken. Not a single case . ! G has held that rights under Article 30(1) would not be governed by Article 29(2). .

55. The authority on which strong reliance has been placed by the counsel of the minority is St. Xaviers College's case (supra). St. Xaviers College was affiliated to the Gujarat University. A resolution was passed by the Senate of the University that all instruction, teaching and training in

T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [S.N. VARIA VA, J.] 843

courses of studies in respect of which the University was competent to hold examinations shall be conducted by the University and shall be imported by teachers of the University. Section 5 of the Act provided that no educational

- institution situated within the University shall, sav~ with the sanction of the State Government, be associated in any way with or seek admission to any privilege of any other University established by law. Section 33A(l)(a) of the Act provided that every College other than ~ Government College or a College B maintained by the Government, shall be under the management of a governing body which included among others, the Principal of the College and a representative of the University nominated by the Vice-Chancellor. Section 33A(l)(b)(I) provided that in the case of recruitment of the Principal, a selection committee is required to be constituted consisting of, among others, a C representatives of the University nominated by the Vice-Chancellor and (ii) in the case of selection of a member of the teaching staff of the College a selection committee consisting of the Principal and a representative of the university nominated by the Vice-Chancellor. Sub-section (3) of the Section stated that the provisions of sub-section (1) of section 33A shall. be deemed to be a condition of affiliation of every college referred to iri that sub-section. D Section 39 provided that within the University area all post-graduate instruction, teaching and training shall be conducted by the University or by such affiliated College or institution and in such subjects as may be prescribed by statutes. Section 40(1) enacted that the Court of the University may determine that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall be conducted by the University and shall be imparted by the teachers of the University. Sub-section (2) of Section 40 stated that the State Government shall issue a notification declaring that the provisions of Section 41 shall come into force on such date as may be specified in the notification. Section 41 (1) of the Act stated that all colleges within the University area which are admitted to the privilege of the university under Section 5(3) and all colleges within the said area which may hereafter be affiliated to the University shall be constituent colleges of the University. Sub-section (4) stated that the relations of the constituent colleges and other institutions within the University area shall be \. governed by statutes to be made in that behalf. Section 51A(a)(b) enacted that no member of the teaching other academic and non-teaching staff of an affiliated college shall be dismissed or removed or reduced in rank except after an enquiry in accordance with the procedure prescribed in clause (a) and the penalty to be inflicted on him is approved by the Vice-Chancellor or any other Officer of the University authorised by the Vice-Chancellor in this behalf. Similarly clause (b) of sub-section (2) required that such termination should H

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

A be approved by the Vice-Chancellor or any officer of the University authorised by the Vice-Chancellor in this behalf. Section 52A( l) enacted that any dispute between the governing body and any member of the teaching and other staff shall, on a request of the governing body or of the member concerned be referred to a tribunal of arbitration consisting of one member nominated by the governing body of the college, one member nominated by the member concerned and an umpire appointed by the Vice-Chancellor. The Petitioner Society contended that they had a fundamental right to establish and administer educational institutions of their choice and that such a right included the right of affiliation. They therefore challenged the constitutional validity of the above Sections. It is in this ·context that various observations have been made. These observations cannot be drawn out of context. In this case it was an admitted position, as set out by Justice Khanna, that children of all classes and creeds were admitted to the college provided they met the qualifying standards. Thus the College never claimed the right to only admit students of its own community. It acknowledged the fact that it had to admit students of all classes and creeds. The majority Judgment, therefore, did not deal with the question of interplay between Artie les 29(2) and 30. Even though it did not deal with the interplay of Articles 29(2) and 30, it was c1ear that reasoning /

of the majority is based on the fact that the College did not deny admissions to the students of other communities. This is clearly indicated by the test which had been laid down by the majority. This test reads as follows: E "Such regulation must satisfy a dual test - the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for .the minority community or other persons who resort to it." (emphasis supplied) F Thus it is held by the majority that the institute is to be made an effective vehicle of education not just for the minority community but also for other persons who resort to do. This indicates that the majority made t~e observations on the understanding that admissions were not restricted only ··• to students of minority community onse State aid was received. This aspect G is_ cleariy brought out in the Judgment of Justice Dwivedi who, whilst dealing with the various provisions of the Constitution, held as follows:

."A glance at the context and scheme of Part III of the Constitution .would show that the Constitution· makers did not intend to confer absolute rights on a religious or linguistic minor!ty to establish and administer educational institutions. The associate Art. 29{2) imposes

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[S.N. VARIA VA, J.] 845 one restriction on the right in Art. 30(1). No religious or linguistic minority establishing and administering an educational institution which receives aid from the State funds shall deny admission to any citizen to the institution Dn grounds only of religion, race, caste, language · or any of them. The right to admit a student to an educational institution is admittedly comprised in the right to administer it. This B right is partly curtailed by Art. 29(2).

The right of admission is further curtailed by Art. 15(4) which provides an exception to Art. 29(2)~ Article 15(4) enables the State to make any special provision for the advancement of any socially and educationally backward class of citizens or for the scheduled caste and scheduled tribes in the matter of admission in the educational institutions maintained by the State or receiving aid from the State.

Article 28(3) imposes a third restriction on the right in Art. 30(1). It provides that no person attending any educational institution recognised or receiving aid by the State shall be required tv take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Obviously, Art. 28(3) prohibits a religious minority establishing and administering an educational institution which receives aid or is recognised by the State from compelling any citizen reading in the institution to receive religious instruction against his wishes or if minor against the wishes of his guardian. It cannot be disputed that the right of a religious minority to impart religious instruction in an educational institution forms part of the right to administer the institution. And yet Art. 28(3) curtails that right to a certain extent.

To sum up, Arts. 29(2), 15(4) and 28(3) place certain express limitations on the right in Art. 30(1). There are also certain implied \ limitations on this right. The right should be read subject to those I implied limitations." (emphasis supplied) G Thus even in this authority the principle that Article 29(2) applies to Article 30(1) has been recognised and upheld. This case·aJso holds that reasonable . restrictions can be placed on the rights under Article 30(1) subject to the test set out hereinabove. H

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

A 56. In the case of Gandhi Faizeam College v. Agra University reported in [1975] 3 SCR 810 the minority college was affiliated to the University of Agra. It applied for permission to start teaching in certain courses of study. The University, as a condition of permitting the additional subjects, insisted that the Managing Committee must be re-constituted in line with Statute 14- A which provided that the principal of the College and senior-most staff B member should be part of the Managing Committee. The Petitioners filed a Writ Petition in the High Court challenging the imposition of such a condition on the ground that it was violative of their rights under Article 30( 1). The High Court dismissed the Writ Petition. Therefore the Petitioners came to this Court. The majority of Judges upheld the order of the. High Court, inter alia, c on the ground that the right under Artie le 30( 1) is not the absolute right and ~ that it is a right which can be restricted. After considering the various authorities (including some of those set out hereinabove) it was held that reasonable regulations are desirable, necessary and constitutional, provided they shape but not cut out of shape the individual personality of the minority. It was held as follows: D "In all these cases administrative autonomy is imperilled transgressing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing, not restructuring, is prescribed. The core of the right is not gouged out at all and the regulation is at once reasonable and E calculated to promote excellence of the institution - a text book instance of constitutional conditions."

. Thus a condition that the Managing Committee be reconstituted is upheld. To be noted that this directly affects the right of administration. Now compulsory the principal and one of-the staff members would be part of the F Managing Committee. Yet it has been held that this is not violative of rights under Article 30(1).

57. In the case of St. Stephen's College v. University of Delhi reported in [1992) I SCC 558, one of the questions was the applicability of Article 29(2) to Article 30(1). Even in this case it has been accepted that Article 29(2) 1 G applies to Section 30( 1). However, the majority of the Judges, after noting that Article 29(2) applies to Article 30( \ ), sought to compromise and/or strike a balance between Articles 29(2) and 30( 1). They therefore prescribed a ratio of 50% to be admitted on merits and 50% to be admitted by the College from their own community. All Counsel, whether appearing for the minorities or for the States/local authorities attacked this judgment and submitted that it is not

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA[S.N. VARIAVA, J.} 847 correct. Of course Counsel for the minorities were claiming a right to admit students of their own community even to the extent of 100%. On the other hand the submission was that once State aid is taken Article 29(2) applied and not even a single student could be admitted on basis of religion, race, caste, language or any of therri. Thus all counsel attacked the judgment as being not correct. In matters of interpretation, there can be no compromise. As B stated above if the language and meaning are clear then Courts must give effect to it irrespective of the consequence. With the greatest of respect to the learned Judges concerned, once .it was held that Article 29(2) applied to Article 30, there was no question of trying to balance rights or to seek a compromise.

58. Justice Kasliwal dissented from the majority view. It must be noted c that in St. Stephen's case, in his minority judgment, he has held that Article 29(2) governs Article 30(1) and that if the minority educational institute chooses to take aid it must comply with the constitutional mandate of Article 29(2). The Judgment in St. Stephens case is of recent origin. It therefore cannot form the basis for applying the principles of "Stare Decisis". D

59. Thus, from any point of view i.e. historical or contextual or on principles of pure interpretation or on principles of "stare decisis" the only interpretation possible is that the rights under Article 30( I) are conferred on minorities to establish and administer educational institutions of their choice at their own cost. This right is a special right which is given by way of E protection so that the majority, which is politically powerful, does not prevent the minorities from establishing their educational institutions. This right was not created because the minorities were economically and socially backward or that their children would not be able to compete on merit with children of other communities. This right was not conferred in order to create a special p category of the citizens. What has been granted to them is a right which was equal to the rights enjoyed by the majority community, namely, to establish and administer educational institutions of their choice at their own cost. As the institution was to be established and maintained at their own expense no right to receive aid has been conferred on the minority institute. All that Article 30(2) provides is that the State while granting aid would not discriminate G merely on the ground that an educational institute was under the management of a minority. Article 30(2) has been so worded as the framers were aware that once State aid was taken some aspects of the right of administration would have to be compromised and given up. The minority educational institute have a choice. They need not take State aid. But if they choose to take State H

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

A aid then they have to comply with constitutional mandates which are based on principles which are as important as if not more important than the rights given to the minorities. Our Constitution mandates that the State cannot ~ discriminate on grounds only of religion, race, caste, language or any of them. Our Constitution mandates that all citizens are equal and that no citizen can be denied admission into educational institution maintained by the State or B receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Thus if State aid is taken the minority educational institution must then not refuse admission to students of other communities on any of those grounds. In other words, they cannot then insist that they would admit students only of their community. Of course, as stated above, c preferences could always be given to students of their own community. But ~ '· pref~rence necessarily implies that all other things are equal, i.e. that on merit the student of their community is equal to the merit of the student of other community. As stated above, in para 37 , in schools the minority community would have a larger amount of leeway and so long as the school admits a sufficient number of outsiders Article 29(2) would not be violated if the refusal is not made on the basis of the religion, race, caste, language. or any of tnem. Of course, at the under-graduate and post-graduate stages merit would have to be the criteria. At these stages there are common entrance examinations by which inter se merit can be assessed. Buf even here, the minority educational institute can admit students of its own community on grounds like those set out in para 37 above. They could give some preference to students coming from their own schools. There could be interviews wherein J

not more than t5% marks can be allotted. Students of their community will be able to compete on merit also. All these would ensure that a sufficient number of students of their own community receive admissions. But the minority institute, once it receives State aid, cannot refuse to abide by the constitutional mandate of Article 29(2). It would be paradoxical to unsettle settled law at such a late stage. It would be paradoxical to hold that the rights under Article 30(1) are subject to municipal and other laws, but that they are not subject to the constitutional mandate under Article 29(2). It would be paradoxical to held that Article 30(1) is subject to Article 28(3) but not to ~ G Article 29(2). It must be remembered that when Article 29(2) was introduced it was part of the same Article (viz. Article 23) whi~h also included what is now Article 30( I). Not only the Constituent Assembly Debates but also the fact that they were part of the same Article shows that Article 29(2) was intended by the framers of the Constitution to apply even to institutions established under Article 30( 1). Thus Article 29(2) governs educational institutions established under Article 30(1). The language is clear and

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA[S.N. VARIAVA,J.J 849 unambiguous. It is clear that Article 30(1) has full play so long as the educational institution is established and maintained and administered by the minority at their own costs. Article 30(2) purposely and significantly does not make taking or granting of aid compulsory. The minority educational institution need not take· aid. However if it chooses to take aid then it can hardly claim that it would not abide by the Constitutional mandate of Article 29(2). Once the language is clear and unambigious full effect must be given to Article B 29(2) irrespective of the consequences. This can be the only interpretation. The only interplay between Articles 29(2) and 30( I) is that once State aid is taken, then students of all communities must be admitted. In others words, no citizen can be refused admission on grounds of religion, race, caste or creed or any of them. Reserving seats for students of one's own community would in effect be refusing admission on grounds of religion, race, caste or creed. As there is no conflict the question of balancing rights under Article 30(1) and Article 29(2) of the Constitution does not arise. As stated by the US Supreme Court in the case of San Antonio Independent School District v. Demetrio P. Rudriguez (411 US 1), it is not the province of this Court to create substantive Constitutional rights in the name of guaranteeing equal protection.

60. In view of above discussion we answer the questions as follows: Q.I. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India? E A. Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since . reorganization of the States in India has been on linguistic lines, therefore, for the purpose of detennining the minority, the unit will be the State an·d not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise. Q. 2. What is meant by the expression "religion" in Article 30( 1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the fo1lowers of that religion are in majority in that State? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q. 3. (a) What are the indicia for treating an educational institution H

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

A · as a minority educational institution? Would an institution be regarded as a minority educational institution because it was ' established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority? B A. . This question need not be answered by this Bench, it will be dealt with by a regular Bench. Q. 3: (b) To what extent can professional education be treated as a matter coming under minorities rights under Article 30? A. Article 30( 1) gives religious and linguistic minorities the right to c establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even .. professional educational institutions would be covered by Article 30. Q. 4:Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated? A. Admission of students to unaided minority educational institutions, viz., Schools where scope for merit based selection is practically nil, cannot be regulated by the State or the University (except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards). Right to admit students being an essential facet of right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right in respect of unaided minority institutions provided however that the admission to the unaided educational institutions is on transparent basis and the merit is the criteria. The right to administer, not being an absolute one, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof and it is more so, I in the matter of admissions to undergraduate Colleges and professional institutions.

The moment aid is received or taken by a minority educational institution it would be governed by Article 29(2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In

T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[S.N. VARIAVA,J.} 851 other words it cannot then give preference to students of its own community. A Observance of inter se merit amongst the applicants must be ensured. In the 1 case of aided professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. Q. 5. (a) Whether the minority's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such procedure must be fair and transparent and selection of students in professional and higher educational colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to mal-administration. Even an unaided minority institution, ought not to ignore merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. Q. 5. (b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? E A. Further to what is stated in answer to question No. 4, it must be stated that. whilst giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state. The F merit may be determined either through a common entrance test conducted by the University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the government to decide. The authority may also G devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society. H

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A Q. 5.• (c) Whether the statutory provisions which regulate the facets of administration like control over educational. agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service · conditions and regulation of fees, etc. would interfere with the B right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration is concerned, in case of an unaided minority ~ducational institution, the regulatory measure of control should be minimal and the conditions of recognition as weJI as conditions c of affiliation to an University or Board have to be complied with, but in the matter of day-to-day Management, like appointment of staff, teaching and non-teaching and administrative control ~ over . them, the Management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the Management itself. For redressing the grievances of such employees who are subjected to punishment or tennination from service, a mechanism ·will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe , 4 t_he minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff, Government/ University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over ) unfair practices and general welfare, of teachers could be framed.

There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to.

The extent of regulations will not be the same for aided and un-aided

T .M.A. PAl FOUNDATION v. STATE OF KARNATAKA [S.N. VARIA VA, J .] 853

institutions. A Q. 6. (a) Where can minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other B States where they are non-minorities? A. This qu~stion need not be answered by this Bench; it will be dealt with by a regular Bench. Q. 6. (b) Whether it would be correct to say that only the members ·of that minority residing in State 'A' will be treated as the C members of the minority vis-a-vis such institution? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q. 7. Whether the member of a linguistic non-minority in one State D can establish a trust/society in another State and claim minority status in that State? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q. 8. Whether the ratio laid down by this· Court in the St. Stephen's E case (St. Stephen's College V. University of Delhi, [1992] 1 sec 558) is correct? If no, what order? A. The ratio laid down in St. Stephen's College case is not correct. Once State aid is taken and Article 29(2) comes into play, then no question arises of trying to balance Articles 29(2) and 31. F Article 29(2) must be given its full effect. Q. 9. Whether the decisions of this Court in Unni Krishnan J.P. v. State ofA.P., [1993] I SCC 645 (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what? G A. The scheme framed by this Court in Unni Krishnan's case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of H

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

A expansion and augmentation of facilities does not. however, amount to profiteering. Q. 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29( 1} ~ read with Articles 14 and 15( 1), in the same manner and to the B same extent as minority institutions? and Q. 11. What is the meaning of the expressions "Education" and "Educational Institutions" in various provisions of the Constitution? Is the right to establish and administer education_al institutions guaranteed under the Constitution? · c A. The expression "education" in the Articles of the Constitution {' means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove. D The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Article 19( 1)(g) and 26, and to minorities specifically under Article 30.

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

T.P. (C) Nos. 1013-1014/93.

ORDER

The Tran~fer petitions are allowed as prayed for.

K.K.T. Answered the Questions/Transfer Petitions allowed.