Holding

The right to establish and administer educational institutions is a fundamental right under Articles 19(1)(g) and 26 for all citizens, and under Article 30 for minorities; private unaided institutions have maximum autonomy, while aided institutions can be regulated more, and minority status is determined state-wise, with aided minority institutions required to admit non-minority students to a reasonable extent without a fixed percentage.

Summary

The case involved challenges by private educational institutions, both minority and non-minority, against government regulations on their administration. The Supreme Court's 11-judge bench addressed five main issues concerning the right to establish educational institutions, reconsideration of the Unnikrishnan scheme, extent of government regulation, determination of minority status, and regulation of aided minority institutions. The Court held that the right to establish and administer educational institutions is a fundamental right under Articles 19(1)(g) and 26 for all citizens, and under Article 30 for minorities. The Unnikrishnan scheme was overruled except for the holding that primary education is a fundamental right. Private unaided institutions are entitled to maximum autonomy, while aided institutions can be subject to greater regulation. Minority status is determined state-wise, not nationally. Aided minority institutions must admit non-minority students to a reasonable extent, but no rigid percentage can be fixed. The Court answered all eleven questions referred to it and allowed the transfer petitions.

Issues considered

Is there a fundamental right to set up educational institutions and if so, under which provision?
Does Unnikrishnan's case require reconsideration?
In case of private institutions, can there be government regulations and, if so, to what extent?
In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit - the State or the country as a whole?
To what extent can the rights of aided private minority institutions to administer be regulated?

Legislation cited

Constitution of Indias. Article 19(1)(g), s. Article 19(6), s. Article 26, s. Article 28, s. Article 29(2), s. Article 30(1), s. Article 30(2), s. Article 337, s. Seventh Schedule, List III, Entry 25

Subjects

Fundamental rightsMinority educational institutionsArticle 30Article 29(2)Right to establish educational institutionsGovernment regulationAdmission policyFee structureMinority status determinationState-wise minorityUnnikrishnan schemeSt. Stephen's CollegePrivate unaided institutionsPrivate aided institutionsCapitation feeProfiteeringSecularismEquality

Judgment

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

OCTOBER 3 1, 2002

[B.N. KIRPAL, CJ., G.B PATTANAIK, V.N. KHARE, S. RAJENDRA B
BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S.N.
VARIA VA, K.G. BALAKRISHNAN, P. YENKATARAMA REDDI,
ASHOK BHAN AND ARIJIT PASA YAT, JJ.]

Constitution of India, 1950:
c
Article 30-Private Institutions-Government Regulations-
Applicability of and its extent-Held: in case of private unaided educational
institution Government can put conditions pertaining to academic and
educational matters and welfare of students and teachers only, but not in the D
matter of administration-In case of private aided educational institutions,
once aid is granted, Government as a condition of grant of aid, can put
fetters on the freedom in the matter of administration and management of the
institution-But such institutions cannot be treated as wholly owned and
controlled by Government-Hence Government cannot interfere. w~th
constitution of governing bodies-Autonomy of aided institution would be E
less than that of an unaided institution. '

Articles 29(2) and 30(1)-Right of Aided Private Minority Institution
to Administer itself-Government regulation-Extent of applicability to-
Held, right under Article 30(1) is not absolute although right to administer
includes right to grant admission to students of its choice-But when such F
minority institution is granted aid, Article 29(2) would apply-Hence one of
the rights of administration of the minorities i.e. right to grant admission
would be eroded to some extent-However, there is an interplay between the
two Articles-Such an institution should admit non-minority students based
on merit to a reasonable extent, whereby minority character of the institution G
is not annihilated and at the same time rights granted under Article 29(2)
are not subverted-The reasonable extent would depend on variable factors
and specific percentage cannot be fixed-Articles 28(1) and (3).

Article 30(2)-Meaning, Scope and effect of-Whether the provision
H
587
588 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A gives a right to ask for grant and aid from the State-In case of State aided
institution extent of its autonomy -Held, grant of aid is not a constitutional
imperative-The provision means that grant of aid by State could not be
denied to religious/linguistic minority institution only on the ground that the
management of the institution is by minority-But if an abject surrender of
right to management is. made a condition of aid, the denial of aid would be
B violative of the provision-However, conditions of aid that do not involve a
surrender pf substantial right of management would not be inconsistent with
constitutional guarantees ev~n if they indirectly impinge upon some facets
of administration-Article 337.

C Article 30(1), VII Schedule List III Entry 2 5-Linguistic and Religious
Minority-Unit of-Whether within the State or the country as a whole-
Held, it would be decided state-wise-Inclusion of 'education' in VII Schedule,
List II/ Entry 25 would not affict determination ofa "religious" or "linguistic"
minority.

D Articles J9(J)(g), 26 and 30-Estab/ishment and administering of
educational institution-Held: Is covered by these Articles and hence a
fundamental right.

Articles 26 and 30-Difference between-Discussed

E Unnikrishnan 's case-Reconsideration of-Held, the case, in so far as
it framed the scheme relating to grant of admission andfv:ing offee, overruled.

Interpretation of Constitution-Harmonious construction-Held, when
constitutional provisions are interpreted it has to be borne in mind that the
interpretation should be such as to further the object for which they were
F incorporated-They cannot be read in isolation and have to be read
harmoniously to provide meaning and purpose-They cannot be interpreted
as to render another provision redundant-Purposive and harmonious
interpretation required.

Interpretation of Statute-Historical facts and Constituent Assembly
G debates---'-Aid of-Held, aid can be taken for construing the provisions of an
Act or the Constitution.

Doctrines:

Doctrine of real de facto equality-Applicability of
H
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA 589
Words and Phrases: A
"Occupation"-Meaning of in the context of Article 19(/)(g) of the
Constitution of India, 1950.
"Minority "-Meaning of

"Religious and Linguistic Minority"-Meaning ofin the context ofArticle B
30 of the Constitution.

"Private educational institution "-Meaning of

Earlier, a 5 Judges Bench of this Court was of the view that Article
30 of the Constitution of India did not clothe a minority educational
institution with power to adopt its own method of selection and doubted C
the correctness of the decision in St. Stephen's College v. University ofDelhi,
[1992] 1 SCC 558. The matter was then placed before 7 Judges Bench who
.directed the matter to be placed before 11 Judges Bench because it felt
that in view of 42nd Amendment to the Constitution, whereby "education"
had been included in Entry 25 of List III of VII Schedule of the D
Constitution, the question as to who would be regarded as "minority" was
required to be considered because the earlier cases deciding the issue
related to pre-amendment era, when 'education' was only in State List.
Eleven questions were referred to the Constitution Bench. In view of the
arguments led by the parties in the petitions, the following five main issues
arose for consideration: E
1. Is there a fundamental right to set up educational institutions
and if so, under which provision?

2. Does Unnikrishnan 's case require reconsideration?
3. In case of private institutions, can there be Government F
Regulations and, if so, to what extent?

4. In order to determine the existence of a religious or linguistic
minority in relation to Article 30, what is to be the unit-the
State or the country as a whole?

5. To what extent can the rights of aided private minority G
institutions to administer be regulated?

Answering the questions, the Court

HELD: Per majority (By B.N. Kirpal, CJ for himself and for G.B.
Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi H
590 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A and Arijit Pasayat, JJ.)

1.1: The expression "education" means and includes education at all
levels f~_om the primary school level upto the post-graduate level. It
includes ·professional education. The expression "educational institutions"
means institutions that impart education. The right to establish and
B administer educational institutions is guaranteed under the Constitution
to all citizens under Articles 19(l)(g) and 26, and to minorities specifically
under Article 30. The right is subject to the provisions of _Articles 19(6)
and 26(a). However, minority institutions will have a right to admit
students belonging to the minority group. [708-D-F]

C .. 1.2. Article 19(1 )(g) em ploys four expressions, viz., profession,
occupation, trade and business. Education has so far not been regarded
as a trade or business where profit is the motive. Even if there is any doubt
about whether education is a profession or not, it does appear that
education will fall within the meaning of the expression "occupation".
D Article 19(J)(g) uses the four expressions so as to cover all activities of a
citizen in respect of which income or profit is generated, ~nd which can
consequently be regulated under Article 19(6). "occupation" is, inter alia,
defined as "an activity in which one engages" or "a craft, trade, profession
or other means of earning a living". The establishment and running of an
educational institution where a large number of persons are employed as
E teachers or administrative staff, and an activity is carried 'on that results
in the iin parting of knowledge to .the students, must necessarily be
regarded as an occupation, even if there is no element of profit generation.
It is difficult to comprehend that education, per se, will not fall under any
of the four expressions in Article 19(1)(g). "Occupation" would be an
activity o{.a person undertaken as a means of livelihood or a mission in
F life. The question of whether there is a fundamental right or not cannot
be dependent upon whether it can be made the subject matter of controls.
1640-D-F; 642-G, B)

Unnikrishnan JP. and Ors. v. State qfAndhra Pradesh and Ors., 1199;3)
G t sec 645, partly overruled.

Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors.,
J1989J 4 sec 155, relied on.
The State of Bombay v. R.MD. Chamarbaugwala, J1957J SCR 874::
AIR (1957) SC 699, referred to.
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 591
Webster's Third New International Dictionary, 1650; Corpus Juris A
Secundum, Volume LXVII, referred to.

1.3. The right to establish and maintain educational institutions may
also be sourced to Article 26(a), which grants, in positive terms, the right
to every religious denomination or any section thereof to establish and
maintain institutions for religious and charitable purposes, subject to B
public order, morality and health. Education is a recognized head of
charity. Therefore, religious denominations or sections thereof, which do
not fall within the special categories carved out in Articles 29(1) and 30(1),
have the right to establish and maintain religious and educational
institutions. This would allow members belonging to any religious
denomination, including the majority religious community, to set up an C
educational institution. Given this, the phrase "private educational
institution" would include not only those educational institutions set up
by secular persons or bodies, but also educational institutions set up by
religious denominations; the word "private" is used in contradistinction
to Government institutions. 1642-D~FJ D
2.1. The scheme framed by this Court in Unnikrishnan '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 expansion and augmentation of facilities does not, E
however, amount to profiteering. 1708-A, BJ

2.2. The restrictions imposed by the scheme, in Unnikrishnan 's case,
made it difficult, if not impossible, for the educational institutions to run
efficiently as a result of economic losses. Thus, such restrictions cannot
be said to be reasonable restrictions under Article 19(6) of the Constitution. F
1647-BI

2.3. The Unnikrishnan juagment has created certain problems, and
raised thorny· issues. In its :inxiety to check the. commercialization of
ed'ocation, a scheme of "free:'' and "payment" seats was evolved on the
assumption that the economic capacity of the first 50% of admitted G
students would be greater than the remaining 50%, whereas the converse
has proved to be the reality.: In this scheme, the "payment seat" student
would not only pay for his own seat, but also finance the cost of a "free
seat" classmate. In practice, it has been the case of the marginally less
merited rural or poor student bearing the burden of a rich and well- H
592 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A exposed urban student. [647-E, F)
2.4. By rraming this scheme, which has led to the State Governments
legislating in conformity with the scheme, the private institutions are
indistinguishable from the Government institutions; curtailing all the
'
B essential features of the right of administration of a private unaided
educational institution can neither be called fair nor reasonable.
1647-H; 648-AJ

2.5. Decision in Unni Krishnan's case, insofar as it framed the scheme
relating to the grant of admission and the fixing or the fee, was not correct,
C and to that extent, the said decision and the consequent directions given
to UGC, AICTE, Medical Council of India, Central and State
governments, etc., are overruled. 1649-GJ

Unni Krishnan JP. and Ors. v. State of Andhra Pradesh and Ors.,
(1993) 1 sec 645, partly overruled.

D R. Chitralekha and Anr. v. State of Mysore and Ors., 11964} 6 SCR
368; Minor P. Rajendran v. State of Madras and Ors., [1968] 2 SCR 7a6,
Kumari Chitra Ghosh and Anr. v. Union of India and Ors., 11969] 2 SCC
228; St. Stephen's College v. University of Delhi, [1992] 1 SCC 558 and
Mohini Jain (Miss) v. State ofKarnataka and Ors., [1992] 3 SCC 666, referred
E to.
3.1. Article 30(1) gives religious and linguistic minorities the right
to establish and administer educational institutions of their choice. The
use of the words "of their choice" indicates that even professional
educational institutions would be covered by Article 30. [704-CI
F 3.2. Admission of students to unaided minority educational
institutions, viz.,schools and undergraduate colleges where the scope for
merit-based selection is practically nil, cannot be regulated by the
concerned State or University, except for providing the qualifications and
minimum conditions of-eligibility in the interest of academic standards.
G [704-E]

3.3. The right to admit students being an essential facet of the right
to administer educational institutions. of their choice, as contemplatecl
under Article 30 of the Constitution, the State Government or the
University may not be entitled to interfere with that right, so long as thr~
H admission to the unaided educational institutions is on a transpar.ent basis
T.M.A. PAl FOUNDATION"· STATE OF KARNATAKA 593
and the merit is adequately taken care of. The right to administer, not A
being absolute, there could be regulatory 111:easures for ensuring
educational standards and maintaining excellence thereof, and it is more
so in the matter of admissions to professional institutions. [704-F, Gl
r
3.4. The right to establish an educational institution can be regulated;
but such regulatory measures must, in· general, be to ensure the B
maintenance of proper academic standards, atmosphere and infrastructure
(including qualified staff) and the prevention of mal-administration by
those in charge of management. The fixing of a rigid fee structure,
dictating the formation and composition of a governing body, compulsory
nomination of teachers and staff for appointment or nominating students C
for admissions would be unacceptable restrictions. With regard to the core
components .of ~he rights under Articles 19 and 26(a), while the State has
the right to prescribe qualifications necessary for admission, private
unaided colleges have the right to admit students of their choice, subject
to an objective and rational procedure of selection and the compliance of
conditions, if any, requiring admission of a small percentage of students D
belonging to weaker sections of the society by granting them freeships or
scholarships, if not granted by the Government. In setting up a reasonable
fee structure, the element of profiteering is not as yet accepted in Indian
conditions. The fee structure must take into consideration the need to
generate funds to be utilized for the betterment and growth of the E
educational institution, the betterment of education in that institution and
to provide facilities necessary for the benefit of the students. In any event,
a private institution will have the right to constitute its own governing
body, for which qualifications may be prescribed by the State or the
concerned University. It will, however, be objectionable if the State retains
the power to nominate specific individuals on governing bodies. F
Nomination by the State, which could be on a political basis, will be an
inhibiting factor for private enterprise to embark upon the occupation of
establishing and administering educational institutions. For the same
reasons, nomination of teachers e.ither directly, by the department or
through a service commission will be an unreasonable inroad and an G
unreasonable restriction on the autonomy of the private unaided
educational institution. [652-H; 653-A, B; 652-D-G]

3.5. There has to be a difference in the administration of private
· unaided institutions and the government-aided institutions. Whereas in the
latter case, the Government will have greater say in the administration, H
· . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.
594
· d ' ad · sions and fixing. of rees, in the case of private unaided
A me1u mg m15 · • · h
institutions maximum autonomy in the day-to-day admmtstrahon as to
be with th: private unaided institutions. Bureauc~ati~ or ~overnmen_tal
interference in the administration of such an inshtutaon will undermtne
its independence. While an educational institution is not a bu~iness, in
order to examine the degree of independence that can be gtven to a
B recognized educational institution, like any private entity that does not seek
aid or assistance from the Government, and that exists by virtue of the
funds generated by it, including its loans or borrowings, it is important
to note that the essential ingredients of the management of the private
institution include recruiting students and staff, and the quantum or fee
·C that is to be charged. (653-E-G)
: . . •. • l . .

.. 3.6. It would be unfair tQ apply the same rules and regulations
r~gulating admission to both aided and unaided professional institutions.
It must be born~ in mind that unaided professional institutions are entitled
to ·a utonomy in their administration while, at the same time, they do not
.D forego or discard the principle of merit. It would, therefore, be permissible
for the University or the Government, at the time of granting recognition,
to require a private unaided institution to provide for merit-based selection
while, at the same time, giv.ing the Management sufficient discretion in
admitting students. The same principles may be applied to other non-
E professional but unaided educational institutions \'iz., graduation an!~ post
graduation non ~professional colleges or institutes. {658-G, H; 659-BJ

· 3.7. Inasmuch as the occupation of education is, in a sense, regarded
as charitable, the Government can provide regulations that will ensure
excellence in education, while forbidding the charging of capitation fee and
.F profiteering by th~ institution. 1654-D, El · . .

3.8. In the case of private unaided educational institutions, the
authority granting recognition or affiliation can certainty lay down
conditions (or the grant of recognition or affiliation; these conditions must
pertain broadly to academic and educational matters and welfare of
G students and teachers .. but how the private unaided institutions are to
I run is a matter of administration to be taken ~are of by the Management
i·
I
of those institutions. Conditions granting recognition or affiliation can
II broadly cover academic and educational matters including tbe welfure or
!I students and teachers. 1658-E; 659-01 · , .
Il f

! 3.9. Conditions or affiliation or recognition, which pertain to the
II
T.M.A. PAI FOUNDATION v. STATEOFKARNATAKA 595
academic and educatioalal character of the institution and ensure A
uniformity, efficiency and excellence in educational courses are valid, and
that they do not violate even the provisions of Article 30 of the
Constitution; but conditions that are laid down for granting recognition
_ should not be such as may lead to Governmental control of the
administration of the private educational institutions. [660-A, B]
B
3.10.0nce aid is granted to a private professional educational •
institution, the Government or the State agency, as a condition of the grant
of aid, can put fetters on the freedom in the matter of administration and
management of the institution. The State, which gives aid to an educational
institution, can impose such conditions as are necessary for the proper
main$enance of the high standards of education as the financial burden is
c
shared by the State. The State would also be under an obligation to protect
. the interest of the teaching and non-teaching staff. At the same time it
has to be ensured that even an aided institution does not become a
Government-owned and controlled institution. Normally, the aid that is
granted is relatable to the pay and allowances of the teaching staff. In D
addition, the Management of the private aided institugons has to incur
revenue and capital expenses. Such aided h.1stitutions cannot obt~in that
extent of autonomy in relation to management and administration as
would be available to a private unaided institution, but at the same time,
it cannot also be treated as an educational institution departmentally run
by Government or as a wholly owned and controlled Government E
institution and interfere with constitution of the governing bodies or
thrusting the staff without reference to Management. The autonomy of a
private aided institution would be less than that of an unaided institution.
(660-E, F; 661-B-D; 661-G]
F
Re: Kera/a Education Bill, 1957 (1959( SCR 995, relied on.

4.1. 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 for the purpose of
determining the minority, the unit will be the State and not the whole of G
.. India. Thus, religious and linguistic minorities, who have been put at par
in Article 30, have to be considered State-wise. [703-E, Fl
D.A. V. College v. State of Punjab and Ors., [19711 Supp. SCR 688 and
D.A. V. College Bhalinda v. State of Punjab and Ors., 119711 Supp. SCR 677,
relied on. H
596 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Re: Kerala Education Bill, 1957 [195'9) SCR 995, referred to.
4.2. If the State has to be regarded as the unit for determining
"linguistic minority" vis-a-vis Article 30, then with "religious minority"
being on the same footing, it is the State in relation to which the majority
or minority status will have to be determined. [662-D]
B I

4.3. The Forty-Second Amendment to the Constitution included
education in the Concurrent List under Entry 25. The minority for the
purpose ·of Article 30 cannot have different meanings depending upon who
is legislating. Language being the basis for the establishment of different
States for the purposes of Article 30, a "linguistic minority" will have to
C be determined in relation to the State in which the educational institution
is sought to be established. The position with regard to the religious
minority is similar, since both religious and linguistic minorities have been
put at par in Article 30. [663-D-F]
5.1. A minority institution may have its own procedure and method
D of admission as well as selection of students, but such a procedure must
be fair and transparent, and the selection of students in professional and
higher education colleges should be on the basis of merit. The procedure
adopted or selection made should not tantamount to mal-administration.
Even an unaided minority institution ought not to ignore the merit of the
E students for admissi9n, while exercising its right to admit students to the
colleges aforesaid, as in that event, the institution will fail to achieve
excellepce. 1705-EJ
5.2. !\ierit may be determined either through a common entrance
test conducted by the concerned .University or the Government followed
by counselling, or on the basis of an entrance test conducted by individual
F institutions-the method to be followed is for the University or the
Government to decide. The authority may alsn 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
G be shown to the weaker sections of the society. [705-H; 706-A, BJ
5.3. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority educational
institution, the regulatory measure of control should be minimal and the
conditions of recognition as well as the conditions of affiliation to an ·
H university or board have to be complied with, but in the matter of day~
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA 597
to-day management, like the appointment of staff, teaching and non- A
teaching, and administrative control over them, the management should
have the freedom and there should not be any external controlling agency.
However, a rational procedure for the selection of teaching staff and for
taking disciplinary action has to be evolved by the management itself.
[706:.0-E) B
5.4. For redressing the grievances of employees of aided and unaided
institutions who are subjected to punishment or termination from service,
a mechanism will have to be evolved, and appropriate tribunals could be
constituted, and .till then, such tribunals could' be presided ·over by a
Judicial Officer of the rank of District Judge. [706-F, G] C
5.5. The State or other controlling authorities, however, can always
prescribe the minimum qualification, experience and other conditions
bearing on the merit of an individual for being appointed as a teacher or
a p·rincipal of any educational institution. [706-G]
5.6. No person attending an educational institution can be required D
. to take part in any religious instruction or any religious worship, unless
the person or his/her guardian has given his/her consent thereto, in a case
where the educational institution has been recognized by the State or
receives aid out of its funds. In any institution, whether established by the
majority or a minority religion, if religious instruction is imparted, no E
student can be compelled to take part in the said religimJs instruction or
in any religious worship. An individual has the absolute right not to be
compelled to take part in any religious instruction or worship. Article 28(3)
thereby recognizes the right of an individual to practice or profess his own
religion. (666-B-DJ
F·
5.7. To some extent, Article 26(1)(a) and Article 30(1) overlap,
insofar as they relate to the establishment of educational institutions; but
whereas Article 26 gives the right both to the majority as well as minority
communities to establish and maintain institutions for charitable purposes,
which would, inter alia, include educational institutions, Article 30(1) refers
to the right of minorities to establish and maintain educational institutions G
of their choice. Another difference between Article 26 and Article 30 is
that whereas Article 26 refers only to religious denominations, Article 30
contains the right of religious as well as linguistic minorities to establish
and administer educational institutions of their choice. 1667-C, D]
The State of Madras v. Srimathi Champakam Dorairajan, 11951] SCR H
598 SUPREME COURT REPORTS [2002] SUPP. 3 S.CR.

A 525 and The State ofBombay v. Bombay Education Society and Ors., J19551
1 SCR 568, referred to.

5.8. Constitution in Part Ill does not contain or give any absolute
·~
right. All rights conferred in Part Ill of the Constitution are subject to at
least other provisions of the said Part. It is difficult to comprehend that
B the framers of the Constitution wouid have given such an absolute right
to the religious or linguistic minorities, which would enable them to
establish and administer educational institutions in a manner so as to be
in conflict with the other parts of the Constitution. It is difficult to accept
that in the establishment and administration of educational institutions
by the religious and linguistic minorities, no law of the land, even the
c Constitution, is to apply to them. [692-E, Fl

5.9. Even though the words of Article 30(1) are unqualified, this
,.
Court has held that at least certain other laws of the land pertaining to
health, morality and standards of education apply. The right under Article
D 30(1) is, therefore, not absolute or above other provisions of the law. By
the same analogy, there is no reason why regulations or·conditions
concerning, generally, the welfare of students and teachers should not be •-
made applicable in order to provide a proper academic atmosphere, as
such provisions do not in any way interfere with the right of administration
or management under Article 30(1). [693-A, Bl
E
5.1 0. Article 30(1) is a sort of guarantee or assurance to the linguistic
and religious minority institutions of their right to establi~h and administer
educational institutions of their choice. Secularism and equality being two
of the basic features of the Constitution, Article 30(1) ensures protection
to the linguistic and religious minorities, thereby preserving the secularism
F of the country. Furthermore, the principles of equality must necessarily
apply to the enjoyment of such rights. No law can be framed that will
discriminate against such minorities with regard to the establishment and
administration of educational institutions vis-a-vis other educational.
institutions. Any law or rule or regulation that would put the educationat
institutions run by the minorities at a disadvantage when compared to the
G institutions run by the others will have to be struck down. At the samE:
time, there also cannot be any reverse discrimination. The essence ofi
Article 30(1) is to ensure equal treatment between the majority and thf~
minority institutions. No one type or category of institution should bf!
disfavoured or, for that matter, receive more favourable treatment than
H another. Laws of the land, including rules and regulations, must apply
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA 599
equally to the majority institutions as well as to the minority institutions. A
The minority institutions must be allowed to do what the non-minority
institutions are permitted to do. (693-C-GI

St..Xav,iers College v. University ofDelhi, 119921 1 SCC 558, relied on.
5.11. Like any other private unaided institutions, similar unaided B
educational institutions administered. by linguistic or religious minorities
are assured maximum autonomy in relation thereto; e.g., method of
recruitment of teachers, charging of fees and admission of students. They
will have to comply with the conditions of recognition, which cannot be
such as to whittle down the right under Article 30. (693-G, H; 694-A]

5.12. The grant of aid is not a constitutional imperative. The founding
c
fathers have not incorporated the right to grants in Article 30, whereas
they have done so under Article 337. Article 30(2) only means what it
states, viz., that a minority institution shall not be discriminated against
when aid to educational institutions is granted. If an abject surrender of
the right to management is made a condition of aid, the denial of aid would D
be violative of Article 30(2). However, conditions of aid that do not involve
a surrender of the substantial right of management would not be
inconsistent with constitutional guarantees, even if they indirectly impinge
upon some facet of administration. If, however, aid were denied on the
ground that the educational institution is under the management of a E
minority, then such a denial would be completely invalid. The implication
of Article 30(2) is also that it recognizes that the minority nature of the
institution should continue, notwithstanding the grant of aid. (694-B-F]

5.13. The right under Article 30(1) implies that any grant that is
given by the State to the minority institution cannot have such conditions F
attached to it, which will in any way dilute or abridge the rights of the
minority institution to establish "-nd administer that institution. The
conditions that can normally be permitted to be imposed, on the
educational institutions receiving the grant, must be related to the proper
utilization of the grant and fulfillment of the objectives of the grant. Any
such secular conditions so laid, such as a proper audit with regard to the G
utilization of the funds and the manner in which the funds are to be
utilized, will be applicable and would not dilute the minority status of the
educational institutions. Such conditions would be valid if they are also
imposed on other educational institutions receiving the grant.
(694-H; 695-A) H
600 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 5.14. It cannot be said that no conditions can be imposed while givin~:
aid to a minority institution. Whether it is an institution run by th(~
majority or the minority, all conditions that have relevance to the proper
utilization of the grant-in-aid by an educational institution can be imposed,
Article 28(1) does not state that it applies only to educational institutions
B that are not established or maintained by religious or linguistic minorities.
Furthe-r~ ore, upon the receipt of aid, the provisions of Article 28{3) would
apply to all educational institutions whether run by the minorities or the
non-minorities. If Articles 28(1) and (3) apply to a minority institution that
receives aid out of State funds, there is nothing in the language of Article
30 that would make the provisions of Article 29(2) inapplicable. Like
C Article 28(1) and Article 28(3), Article 29(2) refers to "any educational
institution maintained by the State or receiving aid out of State funds". A
minority institution would fall within the ambit of Article 29(2) in the same
manner:in which Article 28(1) and Article 28(3) would be applicable to
an aided minority institution. It is true that one of the rights to administer
D an educational institution is to grant admission to students. Article 29(2)
curtails the right to grant admission to a certain extent. By virtue of Article
29(2), no citizen can be denied admission by an aided minority institl'ltion
on the grounds only of religion, race, caste, language or arty of them._lt is
no doubt true that Article 29(2) does curtail one of the powers of the
minority institution, but on receiving aid, some of the rights that an
E unaided ~minority institution has, are also curtailed by Article 28(1) and
28(3). A minority educational institution has a right to impart religious
instruction-this right is taken away by Article 28(1), if that minority
institution is maintained wholly out of State funds. Similarly on receiving
aid out of state funds or on being recognized by the State, the absolute
right of a minority institution requiring a student to attend religious
F instruction is curtailed by Article 28(3). If the curtailment of the right to
administer a minority institution on receiving· aid or being wholly
maintained out of state funds as provided by Article 28 is valid, there is
no reason why Article 29(2) should not be held to be applicable. There is
nothing in the language of Article 28(1) and (3), Article 29(2) and Article
G 30 to suggest that, on receiving aid, Article 28(1) and (3) will apply, but
Article 29(2) will not. Therefore, it cannot be said that the institutions
covered by Article 30 are outside the injunction of Article 29(2).
1695-C-H; 696-A-E}
5.15. Article 29~2) is capable of two interpretations - one
H interpretation is the minority institution, once it takes any aid, cannot
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 60i

make any reservation for its own community or show a preference at the A
time of admission. The other interpretation is that it is a protection against
discrimination on the ground of religion, race, caste or language, and does
not in any way come into play where the minority institution prefers
students of its choice. [696-G, H; 697-B]

5.16. Both Articles 29 and 30 form a part of the Fundamental Rights B
Chapter in Part III of the Constitution. Article 30 is confined to minorities,
be it religious ot linguistic, and unlike Article 29(1), the right available
under the said Article cannot be availed by any section of citizens. The
main distinction between Article 29(1) and Article 30(1) is that in the
former, the right is confined to conservation of language, script or culture. C
The right given by Article 29(1) is fortified by Article 30(1), insofar as
minorities are concerned. The right to establish an educational institution
is not confined to conservation of language, script or culture. When
constitutional provisions are interpreted, it has to be borne in mind that
· the interpretation should be such as to further the object of their
incorporation. They cannot be read in isolation and have to be read D
harmoniously to provide meaning and purpose. They cannot be interpreted
in a manner that renders another provision redundant. If necessary, a
purposive and harmonious interpretation should be given.
f697-F, H; 698-AJ

5.17. Although the right' to administer includes within it a right to E
grant admission to students of their choice under Article 30(1), when such
a minority institution is granted the facility of receiving grant-in-aid,
Article 29(2) would apply, and necessarily, therefore, one of the rights of
administration of the minorities would be eroded to some extent. Article
30(2) is an injunction against the State not to discriminate against the
minority educational institution and prevent it from receiving aid on the F
ground that the institution is under the management of a minority. It is
in this context that some interplay between Article 29(2) and Article 30(1)
is required. As long as the minority educational institution permits
admission of citizens belonging to the non-minority class to a reasonable
extent based upon merit, it will not be an infraction of Article 29(2), even G
though the institution admits studen'ts of the minority group of its own
choice for whom the institution was meant. What would be a reasonable
extent would depend upon variable factors, and it may not be advisable
to fix any ·specific percentage. The situation would vary according to the
type of institution and the nature of education that is being imparted in
the institution. Usually, at the school level, although it may be possible to H
602 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A fill up all the seats with students of the minority group, at the higher level,
either in colleges or in technical institutions, it may not be possible to fill
up all the seats with the students of the minority group. However, even if
it is possible to fill up all the seats with students of the minority group,
the moment the institution is granted aid, the institution will have to admit
students of the non-minority group to a reas1mable extent, whereby the
B character of the institution is not annihilated, and at the same time, the
rights of the citizen engrafted under Article 29(2) are not subverted. It is
for this reason that a variable percentage of admission of minority students
depending on the type of institution and education is desirable, and indeed,
necessary, to promote the constitutional guarantees enshrined in both
C Article 29(2) and Article 30. [698-B, D; F-H; 699-A, BJ

St. Stephen's College v. University of Delhi, 119921 1 SCC 558, relied
on.

5.18. The basic ratio laid down by this Court in St. Stephen's College
D is correct. However, rigid percentage cannot be stipulated. It has to b'e
left to the authorities to prescribe a reasonable percentage having regard
to the type of institution, population and educationaJ needs of minoritie~:.
As Article 29 and Article 30 apply not only to institutions of higher
education but also to schools, a ceiling of 50% would not be proper. It
will be more appropriate that, depending upon the level of the institution,
E whether it be a primary or secondary or high school or a collegl!,
professional or otherwise, and on the population and educational needs
of the area in which the institution is to be located, the state properly
balances the interests of all by providing for such a percentage of students
of the minority community to be admitted, so as to adequately serve the
F interest of the community for which the institution was established.
[707-G, 700-B, CJ

St. Stephen 's College v. University of Delhi, (1992] I SCC 558, partly
overruled.

Indira Sawhney v. Union of india and Ors., 119921 Suppl. 3 SCC 215,
Q referred to.
5.19. The aided linguistic minority educational institution is given
the right to admit students belonging to the linguistic minority to a
reasonable extent only to ensure that its minority character is preserv·ed
and that the objective of establishing the institution is not defeated. If ~;o,
H such an institution is under an obligation to admit the bulk of the students
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 603
. fitting into the description of the minority community. Therefore, the A
·students of that group residing in the State in which the institution is
located have to be necessarily admitted in a large measure because they
constitute the linguistic minority group as far as that State is concerned.
The management bodies of such institutions cannot resort to the device
. of admitting the linguistic students of the adjoining State in which they B
are in a majority, under the facade of the protection given under Article
30(1). If not, the very objective of conferring the preferential right of
admission by harmoniously constructing Articles 30(1) and 29(2) may be
distorted. [700-G, H; 701-A, B]

5.20.The admissions to aided institutions, whether awarded to C
minority or non-minority students, cannot be at the absolute sw~et will
and pleasure of the management of minority educational institutions. As
the regulations to promote academic excellence and standards do not
e~~croach upon the guaranteed rights under Article 30, the aided minority
educational institutions can be required to observe inter se merit amongst
the eligible minority applicants and passage of common entrance test by D
the candidates, where there is one, with regard to admissions in
professional and non-professional colleges. If there is no such test, a
rational. method of assessing comparative merit has to be evolved. As
regards the non-minority segment, admission may be on the basis of the
common entrance test and counselling by. a state agency. In the courses E
for which such a test and counselling are not in vogue, admission can be
on the basis of relevant criteria for the determination of merit. It would
be open to the State authorities to insist on allocating a certain percentage
of seats to those belonging to weaker sections of society, from amongst
the non-minority seats. (700-D-FJ
F
5.2J.It will be wrong to presume that the Government or the
Legislature will act against the Constitution or contrary to the public or
national interest at all times. Viewing every action of the Government with
skepticism, and with the belief that it must be invalid unless proved
otherwise, goes against the democratic form of Government. It is no doubt
true that the Court has the power and the function to see that no one G
including the Government acts contrary to the law, but the cardinal
principle of our jurisprudence is that it is for the person who alleges that
the law has been violated to prove it to be so. In such an event, the action
of the Gove.r::nment or the authority may have to be carefully examined,
-··
but it js.,f:mpro.per to.,. proceed on the assumption that, merely because an H
~-- ··~
604 . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A allegation is made, the action impugned or taken must be bad in law. Such
being the position, when the Government frames rules and regulations or
lays down norms, especially with regard to education, one must assume
that unless shown otherwise, the action taken is in accordance with law.
Therefore, it will not be in order to so interpret a Constitution, and Articles.
29 and 30 in particular, on the presumption that the State will normally
B not act in the interest of the general public or in the interest of concerned!
sections of the society. [701-D-G]

Rev. Sidhajbhai Sabhai and Ors. v. State ofBombay and Anr., [1963} 3
SCR 837; Rev. Father W Proost and Ors. v. The State of Bihar and Ors.,
C [1969} 2 SCR 73; Sta'f ?f Kerala, Etc. v. Very Rev. Mother Provincial, etc.,
[1971] 1 SCR 734; D.A.!V. College v. State ofPunjab andOrs., [1971] Supp.
SCR 688; The Ahmedabad St. Xaviers College Society and Anr. etc. v. State
ofGujarat and Anr., [1975] 1 SCR 17.3; Lilly Kurian v. Sr. Lewina and Ors.,
[1979] 1 SCR 820;Christian Medical College Hospital Employees' Union and
Anr. v. Christian Medical College Vel/ore Association and Ors., [1988]1 SCR
D 546; Gandhi Faizeam College Shahajhanpur v. University of Agra and Anr,
[1975]3 SCR 810; All Saints High School, Hyderabad Etc. Etc. v. Government
of A.P. and Ors. Etc. [1980] 2 SCR 924; Frank Anthony Public School
Employees Association v. Union of India and Ors., [1987] 1 SCR 238 and
Re: Kerala Education Bill, [1957-1959] SCR 995, referred to.

E Per V.N. Khare, 1 (Supplementing):

1.1. The test who are linguistic or religious minorities within the
meaning of Article 30 would be one and the same either in relation to a
State legislation or Central legislation. There cannot be two tests one in
relation to Central legislation and other in relation to State legislation.
F Therefore, the meaning assigned to linguistic or religious minorities would
not be different when the subject "Education" has been transferred to the
"Concurrent List" from the "State List". The test who are linguistic or
religious minorities as settled in Kerala Education Bill's case continues llo
hold good even after the subject "Education" was transposed into Entry
•G 25 List III of Seventh Schedule by the 42nd Amendment Act. If differetnt
meaning is given to the expression ''minority" occurring in Article 30 in
relation to a central legislation, the very purpose for which protection h:as
been given to minority would disappear. The test to determine the status
of linguistic minority would not be different than the religious minoritit~s.
(716-D-GI
'H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 605
1.2. The transposition of the subject Education from List II and List A
III has not brought change to the test for determining who are minorities
for the purposes of Article 30 of the Constitution. Various entries in three
lists of the Seventh Schedule are not powers of legislation but fields of
legislation. These entries are mere legislative heads and demarcate the area
over which the appropriate legislatures are empowered to enact law. The
power to legislate is given to the appropriate legislature by Article 246 B
and other Articles of the Constitution. (715-E, F]

Kerala Education Bill, 1957 [1959] SCR 995, relied on.
D.A. V. College v. State of Punjab, 11971) Suppl. S.C.R. 697,
distinguished. c
A.M Patroni v. F. C. Kesavan, AIR (1965) Kerala 75, referred to.

2.1. Although Article 30(1) strictly may not be subject to reasonable
restrictions, it cannot be disputed that Article 30(1) is subject to Article
28(3) and also general laws and the laws made in the interests of national
security, public order, morality and the like governing such institutions D
will have to be necessarily read into Article 30(1 ). It cannot be held that
the Fundamental Right guaranteed under Article 30(1) is absolute in
terms. Thus, looking into the precedents, historical fact and Constituent
Assembly debates and also interpreting Articles 29(2) and 30(1)
contextually and textually, the irrestible conclusion is that Article 30(1) is E
subject to Article 29(2) of the Constitution. 1734-F-HI

The State of Bombay v. Bombay Education Society and Ors., [1955]1
SCR 568; Kerala Education Bill, [1957-1959] SCR 995; D.A. V. College etc.
v. State ofPunjab and Ors., [1971] Sup pl. SCR 688 and St. Stephen's College
v. University of Delhi, (1992]1 sec 558, relied on. F
Rev. Father W. Proost and Ors. v. The State of Bihar and Ors., [19691
2 SCR 7~; State of Kerala etc. v. Very Rev. Mother Provincial etc., 119711
1 SCR 734; Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., 11963(
3 SCR 837; Rev. Magr. Mark v. Government of Kerala and Ors., [1979) 1
SCR 609 and State ofMadras v. ~rimathi Champakam Dorairajan etc., (19511 .G
SCR 525, referred to.

2.2. Rights conferred on linguistic or religious minorities are not in
the nature of privilege or concession, but their entitJement flows from the
doctrine of equality, which is the real de facto equality. Equality in law
precludes discrimination of any kind, whereas equality in fact may involve H
606 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.
'
A the necessity of different treatment in order to attain a result which
I

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 ~t political, social and legal ...
means of preventing them from falling apart and so destroying the society
B of which they are members. The attempt should be made to assimilate the
minorities with majority. It is a matter of common ~nowledge that in some
of the democratic countries where minority rights were not protected,
those democracies acquired status of theocratic States.
(737·G, H; 738·A, B)

C . 2.3. Right conferred on minority under Artkle 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(1) workable and meaningful,
such rights must be interpreted in the manner in which they serve the
minorities as well as the mandate contained in Article 29(2). Thus, where
minorities are found to have established and admiuistering their own
D 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 treatmen1: to members of minorities in the matter of admission
in their own institution. On application of doctrine of the real de facto
equality in such a situation not only Article 30(1) would be workable and
meaningful, but it would also serve the mandate contained in Article 29(2}.
E Thus while maintaining the rule of non·discrimination envisaged by Article
29(2), the minorities should have also right to give preference to th~:
students of their own community in the matter of admission in their ow111
institution. Otherwise, there would be no meaningful purpose of Articlf~
30(1) in the Constitution. {738-D-F) ·
F
2.4. 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' i.s
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. (734·E]
G
2.5. Even if ·there are no qualifying expressions "subject to other
provisions of this part" and "notwithstanding anything" either in Article
30(1) or Article 29(2), Article 30(1) is subject to Article 29(2) of the
Constitution. 1734-Dl

H The Durgah Committee,· Ajmer and Anr. v. Syed Hussain Ali and Ors.,
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 607
[1962] I SCR 383 and Tikayat Shri Govindlalji Maharaj v. The State of A
Rpjasthan and Ors., 119641 t SCR 561, relied on.

Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., 11963]
3 SCR 837, referred to.

2.6. Article 337 of the Constitution provides that grants or B
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 Article 30(1), it appears appropriate that
"''tlinority educational institutions be given preferential rights in the matter ·
· of admission of children of their community in their own institutions while
admitting students of non-minorities which, advisedly, may be upto 50% C
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. [739-A-C]

State of Madras v. Srimathi Champakam Dorairajan etc., 11951] SCR D
525, relied on.
The Ahmedabad St. Xavier's College Society and Anr. etc. v. State of
Gujarat and Anr., [19751 1 SCR 173, referred to.

"Rights of Persons Belonging to Ethnic, Religious or Linguistic E
Minorities" by Prof. Francesco Capotorti, referred .to.

3.1. 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 s~andard of education in such F
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 going to serve the minorities
but also to majority community. So far as the redressal of grievances of
staff and teachers of minority institutions are concerned, a mechanism has G
to be evolved. Setting· up a Tribunal for particular class of employees is
neither expedient nor condudve to the interest of such employee. In that
view of tbe matter, each District Judge which includes the Addl. District
Judge of the respective district be designated as Tribunal for redressal of
the grievances of the employee and staff of such institutions. (739-D-FJ
H
608 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 3.2. 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
principl~s of natural justice and fair play or any regulation made in that
respect. [739-G, HI

B 4. One of the known methods to interpret a provision of an
enactment or the Constitution is to look into the historical facts or any
document preceding the legislation. Constituent Assembly debates
although not conclusive, yet the intention of framers of the Constitution
in enacting provisions. of the Constitution can throw light in ascertaining
C the intention behind such provision. The report of the Constituent
Assembly debates can legitimately be taken into consideration for
construction of the provisions of the Act or the Constitution.
(724-B, H; 725-AI

His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State ofKera/a
D and Anr. Etc., [1973) 4 SCC 225 and R.S. Nayak v. A.R. Antulay, AIR (1984)
SC 684, relied on.

Per Quadri; J. (Partly dissenting):

1.1. All the citizens have a right to establi~h and administer
E educational institutions under Articles 19(1)(g) and 26.The minorities have
an additional right to establish and administer educational institution 'of
their choice' under Article 30(1). The extent of these rights are, therefore,
different. A comparison of Articles 19,26 and 30 would show that whereas
the educational institutions established and run by the citizens under
Article 19(l)(g) and Article 26(a) are subject to the discipline pf Article§.
F I 9(6) and 26 there are no such limitations in Article 30 of the Constitution~,
so in that the right conferred thereunder is absolute. H~wever, tht!
educational institutions established by the minorities under Article 30(1 )
will be subject only to the regulatory measures which should be consisten1t
with Article 30(1) of the Constitution. The right of the minority institution~;
G to admit students of the minority, if any, would not be affected in any way
by receipt of State aid. [745-E-H)

1.2. 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, existence
H of competent teachers possessing requisite qualifications and maintaining
..
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 609
fair standard of teaching. Such regulations are not restrictions on the right A
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. [749-C, DJ B
In re: Kera/a Education Bill, (1957-1959] SCR 995, relied on.

Ahmedabad St. Xaviers College Society and Anr. etc. v. State ofGujarat
and Anr., {1975) 1 SCR 173, referred to.
c
1.3. 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 interest of good administration of the minority educational
institutions (whether aided or unaided) to frame their own regulations.
This will inspire confidence in both the State and its agencies as well as D
the public and the student community. (749-G, H; 750-A)

1.4. 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 Qf capitation fee being the wors~ part E
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. [750-D, E)

1.5. The expression 'of their choice' includes not only the choice of . F
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. {746-G-H; 747-A]

The State of Bombay v. Bombay Education Society and Ors.. [1955) 1 G
SCR 568; In 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] 1 SCR 173, referred to.

1.6. The expression 'to establish' means to set up on permanent basis. H
610 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A The expression 'to administer' means to manage or to attend to the
running of the affairs. 1747-Bl
·,

Ahmedabad St. Xaviers College Society and Anr. etc. v. State ofGuja~at
and Anr., (197511 SCR 173, relied on.

B t'. 7. 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 i.n the interest of the educationaR
institutions of the minorities. Any regulation which is not in the interest
of the minority educational institutions but is in the interest of an outsidl!
C agency would whittle down the right of the minority to administer the
institution and would be violative of Article 30 of the Constitution. Tht~
true t~st to judge the validity of any regulations imposed by the State fo:r
grant~ng recognition and/or aid is the dual test viz., (i) the regulations must
be reasonable; and (ii) it must be regulative of the educational character
D of the institution and conducive to making the institution an effecHve
vehicle of education for the minority community or other persons who
resort to it. (755-A-C]
.
·~'

Sidhajbhai Sabhai and Ors. v. State ofBombay and Anr., [1963) 3 SCJR
837 a'n(l The Ahmedabad St. Xavier's College Society and Anr. Etc. v. State
E o[Gujarat and Anr:, [1975]' 1 SCR 173, relied on. .

1.8. There can. be no demur to the dicta that Government regulations
cannot destroy the minority character of the institution or make the riglbt
to establish and administer a mere illusion but to say that the right under
Article 30 is not so absolute as to be above the law, would, amount to
F confe'~ring
,. supremacy to the ordinary law over the provisions of tllte
Cons!itution which would be contrary to Article 13 of the Constitution,
as the laws whether existing or. made in exercise of power conferred IDy
the c;onstitution have to be consistent with the provisions of the
Constitution and Part III which includes Article 30 and not vice versa.
(758-C, D]
G
Constitutional Laws of India by H.M. Seervai 3rd Edn.; Law Lexicon
2nd Edition, Reprint 2000, referred to.

1.9. The limitations incorporated in Articles 19, 25 and 26 canu1ot
be read into Article 30. What Article 30 predicates is institutional
H autonomy on the educational institutions established and administered in
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 6}]

exercise of the right conferred thereunder, which cannot be interfered with ·A
by the State except to the extent of framing reasonable regulations in the
interest of excellence of education and to prevent mal-administration. ·
1759-H; 760-AI

The Ahmedabad St. Xaviers College Society and Anr. etc. v. State of
Gujarat and Anr., [1975] 1 SCR 173; D.A. V. College, Jul/under etc. v. The B
State of Punjab and Ors., AIR (1971) SC l 737; State of Kerala v. Very Rev
Mother Provincial Etc., [197111 SCR 734; Father W. Proost and Ors. v. State
of Bihar ancfOrs., (1969] 2 SCR 73; Rt. Rev. Bishop S.K.Patro and Ors. v.
State of Bihar and Ors., [1970] I SCR 172 and In All Saints High School,
Hyderabad etc. etc. v. Govt. of Andhra Pradesh and Ors. etc., 11980] 2 SCR C
924, relied on.
•
Lilly Kurian v. Sr. Lewina, 1197911 SCR 820, referred to.

1.10. The framers of the Constitution, who have subjected the
fundamental rights under Articles 25 and 26 to limitations contained D
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 secular 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 \YOuld be erroneous to assume E
that in placing limitations on certain Fundamental Rights and omitting
to do so on certain others, if are inconsequential, they carried on the
exercise in·futility. Such an assumption cannot be made in respect of any
legislation, much less can it be assumed in regard to ~he Constituent
Assembly. (751-D, E] F
1:11. It cannot be said that though the Constitution itself has not
subjected the right 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 aforemention~d Articles
should be read in Article 30 of the Constitution or that incorporating G
limitations in Articles 19, 25, 26 ~nd not incorporating them in Article 30
is of no significance, cannot but be rejected. 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
exclusive regulation can be permitted to cut down the width of the H
612 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A constitutional right termed as a fundamental right. [751-F-H)

In re: Kerala Education Bill, (1957-1959) SCR995, relied on.

1.i2. The legislative power of a State or Union is subject to the
fundamental rights and the legislature cannot indirectly take away or
B abridge fundamental rights which it could not do directly for granting
either recognition or aid. [752-C)

2.1. Article 29(2) does not apply to a private educational institution
which is not receiving aid out of State funds. Article 29(2) confers an
individual right on every citizen to seek admission into any educationalt
C institution maintained by the State or receiving aid out of State funds. It
embodies the principle of equality in a truncated form and, therefore, a.
citizen can be denied admission by an educational institution whethel'
maintained by the State or receiving aid out of State funds on ground other
than the prohibited grounds - religion, race, caste, language or any one
D of them. The denial of admission by an institution directly based only on
one of the forbidden grounds specified in Article 29(2) is impermissible.
It 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. In. contra-distinction to Article 14, which is an all
E pervading general provision and Article 15(1), clause (2) of Article 29 has
a limited scope. [760-D, E; 761-C, EJ

~tate of Bombay v. Bombay Education Society and Ors., [1955) 1 SCR
568, relied on .
.. .
Punjab Province v. Daulat Singh, (1946) LR 73 I.A. 59, referred to.
F
2.2. The expression 'any educational institution' in Article 29(2) 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. [761-FI
I

2.3. Granting of aid to minority institutions cannot be such as to
denude them of their character as minority institutions. Eve~;~ after
receiving aid, they remain minority educational institutions in aH their
attributes. On grant of aid by the State, Article 29(2) does not control
H Article 30(1). (763-AJ
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA 613
Pradeep Kumar Biswas and Ors. v. Indian Institute ofChemical Biology A
and Ors., [2002] 5 SCC 111; referred to.

2.4. The right conferred on the student community under Article
29(2) is a truncated right though it is available to each student and against
all the institutions maintained by the State or receiving aid from the State
funds. Nevertheless, the right under Article 30(1) is ~ special right B
conferred on minorities, whether based on religion or language, to establish
and to administer educational institutions of their choice and with that
goes the special right of the minority students to seek admission in such
institutions. Article 29(2) even if regarded as a special right in regard to
the student community is of general application in regard to all the C
institutions maintained by the State or receiving aid from the State funds
when compared to special right conferred on minorities under Article 30.
A provision may be special in one aspect and general in other aspect.
[763~B~D)

Ashoka Marketing Ltd. and Anr. v. Punjab National Bank, AIR (1991) D
SC 855 and The Lifo Insurance Corporation of India v. D. J. Bahadur and
Ors.,. AIR (1980) SC 2181, relied on.

2.5. On the principle of generalia specia/ibus non derogant, the general
right of the students under Article 29(2) of the Constitution available in
respect of au educational institutions in general does not prevail over the E
special right conferred on the minority educational institutions established
and administered under Article 30(1) and receiving aid by virtue of Article
30(2) of the Constitution.. f763-G I

2.6. Unlike Article337, there is nothing in clause (2) of Article 30 to
suggest that gr:ant of aid will result in making a percentage of seats F
available for non-minority students or be subject to Article 29(2). On the
institutions deciding to take aid from the State, the right of minority
students to seek admission in such institutions cannot be affected.
[764-B, D)

Regents of the University of California v. Bakke; 438 US 265 (1.978); G
City of Richmond v. JA. Croson Co., 488 .u.s. 469 and United Steelworkers
v. Weber, 443 U.S.l93 (1979), referred to.
2. 7. There is nothing specific in the constitutional debates to suggest
that Article 29(2) was intended to cut down the rights conferred under
clauses (l) and (2) of Article 30 of the Constitution. 1767-C) H
614 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A 2.8. By serving their own linguistic minorities and throwing their
institution open to the majority groups only on fulfillment of the need of
· minorities in a State, is not in violation of the scheme of Article 29(2) and
Article 30 of the Constitution. Therefore, by not applying Article 29(2) of
the Constitution to minority educational institutions based on religion or
B language, the principle of equality or secularism will not in any way be
violated. [771-B, C]

2.9. Fixing a percentage for intake of minority students in minority
education institutions would impinge upon the right under Article 30 as
it would amount to cutting down that right. The best way to ensure
compliance with Article 29(2) as well as Article 30(1) is to consider
C individual cases where denial of admission of a non-minority student by
a minority educational institution is alleged to be in violation of Article
29(2) and provide appropriate relief. (774-D, El

St. Stephen's College v. University of Delhi, (19921 1 SCC 558,
D overr~l,ed.
The State of Bombay v. Bombay Education Society and Ors., (1955J I
SCR 568 and Re: Kerala Education Bill, [1957-1959) SCR 995.,
distinguished.
State of Madras v. Srimathi Champakam dorairajan etc., (19511 SCR
E 525, referred to.
2.1 0. It cannot be said that if Article 28 applies to institutions
established and administered under Article 30(1), Article 29(2) also should
be applicable to it. The right co~ferred under any provision of the
Constitution including Article 30 does not either expressly or by necessary
F implication empower any educational institution including a minority
educational institution to compel anybody to have instructions in the
educational institution established and administered thereunder much less
religious instructions or to attend any religious worship. Article 28 forms
part of the group of Articles placed under the caption 'Right to freedom
of Religion' and not part of 'Cultural and Educational Rights'. But that
G apart, clause (3} of Article 28 is a personal right. It is a specles of the
principle of freedom of religion enshrined in Article 25. Article 28(3) stands
in the same position to Article 25(1) as Article 29(2) to Article 15(1).
(775-F-Hl

2.1 1. It cannot be said that just as Article 26 was held to be subject
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 615
to Article 25, so also Article 30 should be read subject to Article 29(2). A
1776-B}

The Dargah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors.,
[1962] I SCR 383 and Tilkayat Shri Govindlalji Maharaj v. The State of
Rajasthan and Ors., [1964] I SCR 561, distinguished.
B
2.12. To create inroads into the constitutional protection granted to
minority educational institutions by forcing students of dominant groups
of the choice of the State or agenr.y of the State for admission in. such
institutions in preference to the choice of minority educational institutions
will amount to a clear violation of the right specifically guaranteed under
Article 30(1) of the Constitution and will turn the Fundamental Right into C
a promise of unreality which will be impermissible. Right of minorities to
...
admit students of non-minority of their choice in their educational
institutions set up under Article 30 is one thing but thrusting students of
non-minority on minority educational institutions, whatever may be the
percentage, irrespective of and prejudicial to the need of the minority in D
such institution, is entirely another. lt is the former and not the latter
course of action which will be in conformity with the sc:heme of clause (2)
of Article 29 and clauses (1) and (2) of Article 30 of the Constitution..
[776-D-E}

3. Admissibility of speeches made in the Constituent Assembly for E
interpreting provisions of the Constitution is not permissible. [766-C]

A.~. Gopalan v. State of Madras, AIR (1950) SC 27 and Trav-Cochin
v. Bombay Company Ltd., AIR (1952) SC 366, relied on.

His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, F
[1973] 4 SCC 225; R.S. Nayak v. A.R. Antulay, AIR (1984) SC 684; /ndra
Sawhney etc. etc. v. Union of India and Ors. etc. etc., AIR (1993) SC 477;
K.S. Paripoornan v. State ofKerala, AIR (1995) SC 1012 and P. V. Narasimha
Rao v. State, (CBI/SPE) AIR (1998) SC 2120, referred to.

Black-Clawson v. Papierwerke AG, [1975 AC 5911 and of the Privy G
Council in Administrator-General of Bengal v. Prem Nath Mullick, 1895 (22)
I.A. 107, referred to.
Ruma Pal, J. (Partly dissenting)

1. The question whether a group is a minority or not must be
determined in relation to the source and territorial application of the H
616 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A particular legislation against which protection is claimed. The protection
under Article 30 is against any measure, legislative or otherwise, which
infringes the rights granted under that Article. The right is not claimed
in a vacuum-it is claimed against a particular legislative or executive
measure and the question of minority status must be judged in relation
B to the offending piece of legislation or executive order. If the source of
the infringing action is the State, then the protection must be given against
the State and the status of the individual or group claiming the protection
must be determined with reference to the territorial limits of the State. If
however the protection is limited to State action, it will leave the group
which is otherwise a majority for the purpose of State legislation,
C vulnerable to Union legislation which operates on a national basis. When
the entire nation is sought to be affected, surely the question of minority
status ,must be determined with reference to the country as a whole.
[779-B; 777-B, C)
Re: Kerala Education Bill, (1957-1959] SCR 995; D.A. V. College v.
D State of Punjab, I [1971] Supp. SCR 688 and D.A. V. College v. State of
Punjab, (II) [1971] Supp. SCR 677, referred to.

2.1. Article 30(1) creates a special class in the field of educational
institutions - a -class which is entitled to special protection in the matter
of setting up and administering educational institutions of their choice.
E [786-H; 787-A)
In Re: Kerala Education Bill, [1957- 1959) SCR 995; Rev. Sidhajbhai
Sabhai v. State of Bombay, [1963) 3 SCR 837; Rev. Father W. Proost and
Ors. v. State ofBihar, 11969) 2 SCR 173; State ofKerala v. Very Rev. Mother
Provincial, [1971 J I SCR 734; The Ahmedabad St. Xaviers College Society
F and Anr. etc. v. State ofGujarat and Anr., [1975] l SCR 173 and Lily Kurian
v. Lewina, [1979] 2 SCC 124, referred to.

2.2. A semantic analysis of the words used in Article 30(1) indicates
that the right to admit students is an intrinsic part of Article 30(1). The
right to set up an educational institution necessarily includes not only the
G selection of teachers or educators but also the admission of students. If
the administration of an. educational institution includes and means its
organisation then the organisation cannot be limited to the infrastructure
for the purposes of education and exclude the persons for whom the
infrastructure is set up, namely, the students. The right to admit students
is, therefore, part of the right to administer an educational institution.
H 1787-C, D, El
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 617
2.3. The benefit which has been guaranteed under Article 30 is a A
protection or benefit guaranteed to all members of the minority as a whole.
The content of the right lies not in merely managing an educational
institution but doing so for the benefit of the community. Benefit can only

the right to establish and set up an organisation for giving education
an end in itself, and ~eny them the benefit of the education. This would
's
lie in the education received. It would be meaningless. to give the minorities...

B
render the right a mere form without any content. The benefit to the
community and the purpose of the grant of the right is in the actual
education of the members of the community. (787-F; 788-A-C)

2.4. The words 'of their choice' occurring in Article 30(1) is not C
qualified by any words of limitation and would include the right to admit
students of the minority's choice. Since the primary purpose of Article
30(1) is to give the benefit to the members of the minority community in
question that 'choice' cannot be exercised in· a manner. that deprives the
community of the benefit. Therefore, the choice must be directed towards
fulfilling the needs of the community. How that n~ed is met, whether by D
;~eneral education or otherwise, is for the community to determine.
[788-D]

State of Bombay v. Bombay Education Society, [1955] 1 SCR 568;
Kera/a Education Bill, [1957-1959] SCR 995; Rev. Sidhajbhai Sabhai v.
State of Bombay, [1963) 3 SCR 837; The Ahmedabad St. Xaviers College, E
Society and Anr. v. State of Gujarat and Anr., [1975] 1 SCR 173 and St.
Stephen's College v. University of Delhi, [1992) 1 SCC 558, referred to.

2.5. The right to admission being an essential part of the
constitutional guarantee under Article 30(1), a curtailment of that
fundamental right in so far as it affects the benefit of the minority F
community would amount to an infringement of that guarantee. [790-F]

2.6. An Institution set up by minorities for educating members of
the minority community does not cease to be a minority institution merely
because it takes aid. There is nothing in Article 30(1) which allows the
drawing of a distinction in the exercise of the right under that Article G
between needy minorities and affluent ones. Article 30(2) of the
Constitution reinforces this when it says, "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". This !!ssumes that even after the H
618 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A grant of aid by the State to an educational institution under the
management of the minority, the educational institution continues to be a
minority educational institution. In the context of Article 30(1) and having
regard to the content of the right, namely, the education of the minority
,
community, the word 'management' in Article 30(2) must be construed
to mean the 'process' and not the 'persons' in management. 'Aid' by
B definition means to give support or to help or assist. It cannot be that by
giving 'aid' one destroys those to whom 'aid' is given. "The obvious purpose
,
of Article 30(2) is to forbid the State from refusing aid to a minority
educational institution merely because it is being run as a minority
ed·ucational institution. Besides Article 30(2) is an additional right
C conferred on minorities under Article 30(1). It cannot be construed in a
llUlnner which is destructive o.f or as a limitation on Article 30(1).
Therefore, grant of aid under Article 30(2) cannot be used as a lever to
take away the rights of the minorities under Article 30(1).
. [790-F-H; 791-B-DI

D Rev. Sidhajbhai Sqbhai v. State of Bombay, (1963] 3 SCR 837, relied
on.
,, .

Kiidangazhi Manakkal Narayanan Nambudirpad v. State of Madras,
AIR (1954) Madras 385; Ramanuja v. State of Tamil Nadu, AIR (1972) SC
E 1586; Quareshi v. State ofBihar, (1959] SCR 629; Chiranjit La/ Chowdhury,
v. Union of India and Ors., [19591 SCR 869 and Keshawananda Bharti v.
State of Kera/a, AIR (1973) SC 146, referred to.

Reynolds v. United States, [1978] 98 US 145; Everson v. Board of
Education, 330 IUS l and Tiiinois v. Board of Education, 1947 (82) Law Ed.
F 649, referred to.

Concise Oxford Dictionary lOth Edition 864, referred to.

3.1. The right to admit minority students to a minority educational
institution is an intrinsic part of Article 30(1) . To say that Article 29(2)
G prevails over Article 30(1) would be to infringe and to a large extent wipe
out this right. The-re would ·be no distinction between a minority
educational institution and other institutions and the rights under Article
30(1) would be rendered wholly inoperational. It is no answer to say that
the rights of unaided minority institutions would remain untouched
because Article 29(2) does not relate to unaided institutions at all. Whereas
H if one reads Article 29(2) as subject to Article 30(1) then effect can be given
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 619

to both. And it is the latter approach which is to be followed in the A
interpretation of constitutional provisions. In other words as long as the
minority educational institution is being run for the benefit of and catering
'. to the needs of the members of that community under Article 30(1), Article
29(2) would not apply. But once the minority educational institution travels
beyond the needs in the sense of requirements of its own community, at B
that stage it is no longer exercising rights of admission guaranteed under
Article 30(1). To pot it differently, when the right of admission is exercised
not to meet the need of the minorities, the rights of admisiion given under
Article 30(1) is to that extent removed and the institution is bound to admit
students for the balance in keeping with the provisions of Article 29(2).
(795-D-G] C
Kerala Education Bill, (1957-1959) SCR 995; Ahmedabad St. Xaviers ·
College and Anr. etc. v. State ofGujarat and Anr., (1975)1 SCR 173 and
Sri Venkataramana Dev Aru v. State of Mysorl3; [1958] SCR 895, referred
to.
D
3.2. Article 29(2) does.
not operate to deprive aided
. minority
institutions the right to admit members of their community to educational
institutions established and administered by them either on any principle
of interpretation or on any concept of equality or secularism. 1796-B, Cl

3.3. Article 29(2) has not been expressed as a positive right. E
Nevertheless in substance it confers a right on a person not to be denied
admission into an aided institution only on ~he basis of religion, race etc.
. The language of Article 29(2) renects the language used iil other non-
discriminatory Articles in the Constitution namely, clauses (1) and (2) of
Article IS and clauses (I) and (2) of Article 16. (792-A, BJ
F
3.4. Article 29(2) does not create an absolute right for citizens to be
admitted into any educational institution maintained by the State or
receiving aid out of State funds. It does not prohibit the denial of admission
on grounds other than religion, race, caste or language. Therefore,
reservation of admissions on the ground of residence, occupation of parents G
or other bases has been held to be a valid classification which does not
derogate from the principles of equality under Article 14. Even in respect
of the "prohibited" bases, like the,.other non-discriminatory Articles,
Article 29 (2) is constitutionally subject to the principle of 'rational
classification'. If a person is denied admission on the basis of a
constitutional right, that is not a denial only on the basis of religion, race H
620 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A etc. This ~s exemplified in Article 15(4). (792-E-Gl
Kumari Chitra Ghosh v. Union of India, 1196912 SCC 228 and D.N.
Chanchala v. State of Mysore, (19711 Supp. SCR 608, referred to. •
'

· 3.5. To the extent that legislation is enacted under Article 15 (4)
B making 'special provision in respect of a particular caste, there is a denial
of admission to others who do not belong to that caste. Nevertheless,
Article 15(4) does not contradict the right under Article 29(2). This is ..
because of the use of the word 'only' in Article 29(2). Article 15(4) is based
on the rationale that Schedule Castes and Tribes are not on par with other
members of society in the matter of education and, therefore, special
lc provision is to be made for them. It is not, therefore, only caste but this
additional factor which prevents clause 15(4) from conflicting with Article
29(2) and Article 14. [793-B, C)
'
3.6. Under Article 337, grants are made available for the benefit of
the Anglo-Indian community in respect of education, provided that any
D educational institution receiving such grant makes available at least 40%
of the annual admissions for members of communities other than the
Anglo-Indian community. To the extent of such reservation, there is
necessarily a denial of admission to non-Anglo Indians on the basis of race.
[793-DJ
E
3.7. Constitution has also carved out a further exception to Article
29(2) in the form of Article 30 (1) by recognising the rights of special
classes
. in the form of minorities based on language or religion to establish.
and administer ·educational institutions of their choice. The right of the
minorities under Article 30(1) does not opera~e as discrimination against
F other citizens only on the ground of religion or language. The reason for
such classification is not only religion or language per se but minorities
based on religion and language. Although, it is not necessary to justify a
classification made by .the Constitution, this fact of 'minorityship' is the
obvious rationale for making a distinction, the underlying assumption
being that minorities by their very numbers are in a politically . ..
G disadvantaged situation and require special protection at least in the field
of education. Articles 15(4), 337 and 30 are therefore facets of substantive
equality by making special provision for special classes on special
considerations. [793-E-G I

3:8. Even on general principles of interpretation, it cannot be said
H
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA 621

that Article 29(2) is absolute and in effect wipes out Article 30(1). Article A
29(2) refers to 'any educational institution'-the word "any" signifying
the generality of its application. Article 30(1) on the other hand refers to
'educational institutions established and administered by minorities'.
Clearly, the right under Article 30(1) is the more particular right and on
the principle of 'generalia specialibus non derogant' , it must be held that B
Article 29(2) does not override the educational institutions even if they
are aided under Article 30(1). [793-H; 794-A, B]

Bhinka V. Charan Singh, AIR (1959) SC 960; relied on.

Pandit MS.M. Sharma v. Shri Sri Krishna Sinha, 11959) Suppl. 1 SCR
806 and In Re: The Central Provinces and Berar Sales of Motor Spirit and C
Lubricants Taxation Act, 1938 (Central Provinces and Berar Act No.· XIV of
1938), referred to.

3.9. Article 29(2) appears under the heading 'Protection of interests
of minorities'. On general principles of interpretation, the heading is at
least a pointer or aid in construing the meaning of Article 29(2). Therefore, D
if two interpretations of the words of Article 29(2) are possible, the one
which is in keeping with the heading of the Article must be preferred. It
would follow that Article 29(2) must be construed in a manner protective
of minority interests and not destructive of them. 1794-B-D)

3.10. Article 28(1) and (3) do not in terms apply to linguistic minority E
educational institutions at all. Furthermore, the right to set up an
educational institution in which religious instruction is to be imparted is
a right which is derived from Article 26(a) which provides that every
religious denomination or any section thereof shall have the right to
establish and maintain institutions for religious and charitable purposes, F
and not under Article 30(1). Educational institutions set up under Article
26(a) are, therefore~ subject to clauses (1) and (3) of Article 28. Article
30(1) is a right additional to Article 26(a). This follows from the fact that
it has been separately and expressly provided for and there is nothing in
the language of Article 30(1) making the right thereunder subject to
Articles 25 and 26. Unless it is so construed Article 30(1) would be rendered G
redundant. Therefore, what Article 30 does is to secure the minorities the
additional right to give general education. Although in a particular case
a minority educational institution may combine general education with
religious instruction that is done in exercise of the rights derivable from
Article 26(a) and Article 30(1) and not under Article 30(1) alone. Clauses H
622 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A (1) and (3) of Article 28, therefore, do not apply to Article 30(1).
[794-G; 795-A-CJ

St. Xaviers College Society and Anr. etc. v. State of Gujarat and Anr.,
I1975) l SCR 173, referred to.
B 3.11. There is nothing in the speeches of the Constituent Assembly
which shows an intention on the part of the Constituent Assembly to
abridge in any way the special protection afforded to minorities under
Article 30(1). 1796-G]

K.P. Verghese v. Income Tax Officer, [1982] 1 SCR 629; Sanjeev Cake
C v. Bharat Cooking Coal Ltd, [19831 l SCR 1000; P. V. Narasimha Rao,
[1998) 4 SCC 626 and Keshawananda Bharati v. State of Kerala, [19731 4
sec 225, referred to.
3.12. There is no question of striking a balance between Article 29(2)
and 30(1) as if they were two competing rights. Where Article 29(2) is
D nothing more than a principle of equality, and when the whole object of
conferring the right on minorities under Article 30 is to ensure that there
will be equality between the majority and the minority, if the minorities
do not have such ·special protection they will be denied equality, it must
follow that Article 29(2) is subject to the constitutional classification of
minorities under Article 30(1). 1799-C, El
E
St. Stephen's College v. University of Delhi, 119921 I SCC 558,
overruled.
Champakam Dorairaja11 v. State of Madras, 11951 J SCR 525 and State
of Bombay v. Bombay Education Society, {19551 SCR 568, distinguished.

F The Ahmedabad St. Xaviers College Society and Anr. Etc. v. State of
Gujarat and Anr., Jl975J l SCR 173, referred to.

3.13. Rights of linguistic minorities assumed special significance and
support when much after independence, the imposition of a 'unifying
language' led not to unity but to an assertion of differences. States were
G formed on linguistic basis showing the apparent paradox that allowing for
and protecting differences leads to unity and integrity and enforced
assimilation may lead to disaffection and unrest. The recognition of the
principle of "unity in diversity" has continued to be the hall mark of the
Constitution-a concept which has been further strengthened by affording
H further support to the protection of minorities on linguistic basis in 1956
T.M.A. PAl FOUNDATION r. STATE OF KARNATAKA 623
by way of Articles 350-A and 350-B and in 1978 by introducing clause (1- A
A) in Article 30. 1797-E-GJ

Society of St. Joseph's College v. Union of India, 12002) 1 SCC 273,
referred to.

3.14. Article 29(2) pertains to the right of an individual and is not a B
class right. It would therefore apply when an individual is denied admission
into any educational institution maintained by the State or receiving aid
from the State funds, solely on the basis of the ground of religion, race,
caste, language or any of them. It does not operate to create a class interest
or right in the sense that any educational institution has to set apart for
non-minorities as a class and without reference to any individual applicant, C
a fixed percentage of available seats. Unless Articles 30(1) and 29 (2) are
allowed to operate in their separate fields then what started with the
voluntary 'sprinkling' of outsiders, would become a major inundation and
a large chunk of the right of an aided minority institution to operate for
the benefit of the community it was set up to serve, would be washed away.
Therefore the requirement of the minority community for admission to a D
minority educational institution should not be left to the State or any other
Governmental authority to determine. If the Executive is given the powt=r
to determine the requirements of the minority community in the matter
of admission to its educational institutions, it would be subjecting the
minority educational institution in question to an "intolerable E
encroachment" on the right under Article 30 (1) and let in by the back
door as it were, what should be denied entry altogether.
[800-C, D, H; 801-A)

S.N. Variava, J. (for himself and Ashok Bhan, J.) (Partly dissenting)
F
1.1. The scheme framed in Unnikrishnan 's case cannot be considered
to be a reasonable restriction and requires re-consideration and that the
regulations must be minimum. The majority of our population come from
the poorer section of our society. They cannot and will not be able to afford
the fees which will now be fixed pursuant to the judgment. There must
therefore be an attempt, not just on the part of the Government and the G
State, but also by the educational institutions to ensure that students from
the poorer section of society get admission. One method would be by
making available scholarships or free seats. If the educational institution
is willing to provide free seats then the costs of such free seats could also
be partly covered by the fees which are now to be fixed. There should be H
624 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A no harm in the rich subsidising the poor. (802-C, D]
1.2. The concerned authorities will always be entitled to prevent by
enactment or by regulations the charging of exhorbitant fees or capitation
fees. The fee structure, fixed under any regulation or enactment, will have_
to be reworked so as to enable educational institutions not only to break
B even but also to generate some surplus for future development/expansion
and to provide for free seats. (802-E-G]

1.3. An educational institution must grant admission on some
identifiable and acceptable manner. It is only in exceptional cases, that
the management may refuse admission to a student. However such refusal
C must not be whimsical or for extraneous reasons meaning thereby that
the re3fusal must be based on some cogent and justifiable reasons.
(802-H; 803-A]

2. EducationJllnstitutions receiving State aid cannot claim to have
complete autonomy in the matter of administration. They are bound by
D various statutory provisions which ·are enacted to protect the interests of
the education, students and teachers. Many of the statutes were enacted
long back and stood the test of time. Nobody has ever challenged the
provisions of these enactments. The regulations made by the State, to a
great extent, depend on the extent of the aid given to institutions including
E minority institutions. Statutory provisions such as labour laws and welfare
legislations etc. would be applicable to minority educational institutions.
The State which gives aid to educational institution including minority
educational institution can impose such conditions as are necessary for the
proper maintenance for the higher standards of education.
(804-A, B, D, 803-BI
F
Kesvanananda Bharti v. State of Kerala, (1973} 4 SCC 225 and R.S.
Nayak v. A.R. Antulay, AIR (1984) SC 684, relied on.

3.1. The rights under Article 30 were created so that minorities need
have no apprehension that they would not be able, either in the religious
G or in the educational fields, to do what the politically powerful majority
could do. Principles of equality required that the minorities be given the
same rights. There never was any intention or desire to create a special
or privileged class of citizens. (807-G, H; 808-CI

St. Xavier College v. State of Gujarat, (1975( 1 SCR 173 and
H Kesvanananda Bharti v. State of Kerala, (19731 4 SCC 225, referred to.
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 625

3.2. Minorities have full rights to establish and administer A
educational institution at their own costs, but if they choose to take State
aid they must then abide by the Constitutional mandate of Article 29(2)
and with principles of equality and secularism. The same result follows if
- principles of interpretation are applied. It is settled law that if the language
of the provision, being considered, is plain and unambiguous the same must B
be given effect to, irrespective of the consequences that may result or arise.
While interpreting provisions of a Statute, if two interpretations are
possible, one which leads to no conflict between the various provisions and
· another which leads to a conflict between the various provisions, then the
interpretation which leads to no conflict must always be accepted.
[824-D-FJ C
3.3. The framers of the Constitution unambiguously and
unanimously intended that rights given under Article 30(1) could be fully
enjoyed so long as the educational institutions were established and
administered at their own costs and expense. Once State aid was taken,
then principles of equality and secularism, on which our Constitution is D
based, were to prevail and admission could not be denied to any student
on grounds of religion, race~ caste, language or any of them. [824-F..Gl

3.4. Plain reading of Article 29(2) shows that it applies to "any
educational institution" maintained by the State or receiving aid out of
State funds. The words ''any educational institution" takes within its ambit E
an educational institution established under Article 30(1). It is to be
remembered that when Article 29(2) (i.e. Article 23(2)] was framed it was
part of the same Article which contained what is now Article 30(1). Thus
it was clearly meant to apply to Article 30(1) as well. Article 30 nowhere
provides that the provisions of Article 29(2) would not apply to it. Article F
30(1) does not exclude the applicability of the provisions of Article 29 (2)
to educational institutions established under it. A plain reading of the two
Articles indicates that the rights given under Article 30(1) can be fully
exercised so long as no aid is taken from the State. It is for this reason
that Article 30 does not make it compulsory for a minority educational
institution to take aid or for the State to give it. All that Article 30(2) G
provides is that the State in granting aid to educational institutions shall
not discriminate against any educational institution on the ground that it
is under the management of a minority. In cases where the State gives
aid to educational institutions the State would be bound by the
Constitutional mandate of Article 29(2) to ensure that no citizen is denied H
626 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A admission into the educational institution on grounds of religion, race,
caste, language or any of them. By so insisting the State would not be
discriminating against a minority educational institution. It would only
be performing the obligation cast upon it by the Constitution of India.
1824-H; 825-A-D)

B 3.5. Article 30(2) merely provides that the State shall not discriminate
on the ground that it is under the management 'lf a minority. Article 30(2)
does not provide that State shall not in granting aid impose any condition
which would restrict or abridge the rights guaranteed under Article 30(1).
The framers were aware that when State aid was taken the principles of
C equality and secularism, which are the basis of our Constitution, would
have t~ prevail. The framers of the Constitution considered the principle
of equality and secularism to be more important than the rights under
Article 30(1). Thus in Article 30(2) it was advisedly not provided that rights
under Article 30(1) could not be restricted or abridged whilst granting
aid. A plain reading of Article 30(2) shows that the framers of the
D Constitution envisaged that certain rights would get restricted and/or
abridged when a minority educational institute chose to receive aid. It must
also be noted that when property rights were deleted [by deletion of Article
19(1)(t)] the framers ofthe Constitution realised that rights under Article
30(1) would get restricted or abridged unless specifically protected. Thus
E Article 30(1A) was introduced. Article 30(1A), unlike Article 30(2),
specific~lly provides the acquisition of property of a minority educational
institute must be in a manner which does not restrict or abrogate the rights
under Article 30(1). When the framers so intended they have specifically
so provided. 1825-E-H; 826-A]

F 3.6. Article 15(1) prohibits the State from discriminating against
citizens on grounds only of religion, race, caste, sex, place of birth or any
of them. If the State were to give aid to a minority educational institution
which only admits students of its community then it would be
discr4m~nating against other citizens. who cannot get admission to such
institutions. Such an interpretation would also lead to clash between Article
G 30 and Article 28(3). There may be a religious minority educational
institute set up to teach th.eir own religion. Such an institute may, if it is
unaided, only admit students who are willing to say their prayers. Yet once
aid is taken such an institution cannot compel any student to take part in
. religious instructions unless the student or his parent consents. If Article
H 30(1) were to be read in a manner which permits State aided minority
T.M.A. PAf FOUNDATION v. STATE OF KARNATAKA 627

educational institutions to admit students as per their choice, then they A
could refuse to admit students who do not agree to take part in religious
instructions. The prohibition prescribed in Article 28(2) could then be
rendered superfluous and/or nugatory. Apart from rendering Article 28(2)
nugatory such an interpretation would set up a very dangerous trend. All
minority educational institutions would then refuse to admit students who B
do not agree to take part in religious instructions. 1826-G, H; 827-A-, B)

3. 7. All citizens have a fundamental right to establish and carry on
an educ.ational institution under Article l9(1)(g). An educational institution
can also be established and maintained under Article 26(a). An educational
institution could also be established under Article 29(1) for purposes of C
conserving a distinct language, script or culture. All such educational
institutions would be governed by Article 29(2). Thus if a religious
educational institution is established under Article 26(a) it would on receipt
of State aid have to comply with Article 29(2). Similarly an educational
institute established for conserving a distinct language, script or culture
would, if it receives State aid, have to comply with Article 29(2). It would D
be anomalous to say that an educational institute set up to teach religion
or to conserve a distinct language, script or culture has to comply with
Article 29(2) but an educational institute set up to give general secular
education does not have to comply with Article 29(2). Article 30 was not
framed to create a special or privileged class of citizens. It was framed E
only for purposes of ensuring that the politically powerful majority did
not prevent the minority from having their educational institutes. Article
30(1) cannot be given a meaning which would result in making the
minorities, whether religious or linguistic, a special or privileged class of
citizens. It should be given a meaning which would further the basic and
overriding principles of our Constitution viz. equality and secularism. The F
interpretation must not be one which would create a further divide
between citizen and citizen. [827-E-H; 828-A·C)

3.8. 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(1) are conferred G
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 protection so that the majority, which is politically powerful, does
not prevent the minorities·from establishing their educational institutions.
[847-EJ H
628 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 3.9. Article 30 merely protects the right of the minority to establish
and administer an educational institution, i.e. to have the same rights as
those enjoyed by majority. Article 30 gives no right to receive State aid.
It is for the institution to decide whether it wants to receive aid. If it decides
to take State aid then Article 30(2) merely provides that the State will not
B discriminate against it. When State, whilst giving aid, asks the minority
educational institute to comply with a constitutional mandate, it can hardly
be said that the State is discriminating against that institute. The State is
bound to ensure that all educational institutes, whether majority or
minority, comply with the constitutional mandate. (829-A-C) ·

C 3.10. 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 hold that Article 30(1) is subject to Article 28(3) but not"to Article 29(2). ·
When Article 29(2),was introduced it was part of the same Article (viz.
Article 23) which also included what is now Article 30(1). The only
0 interplay between Articles 29(2) and 30(1) is that once State aid is taken,
then students of all communities must be admitted. 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
E Constitution does not arise. 1848-F-H; 849-B, CJ

San Antonio Independent School District v. Demetrio P. Rudriguez, (4~1
US 1), referred to.

3!.tt. Linguistic and religious minorities are covered by the
expression "minority" under Article 30 of the Constitution. Since
F reorganization of th.e States in lndJa has been on linguistic lines, therefore,
for the purpose of determining the minority, the unit will be the State and
not the whole of India. Thus, religious and linguistic minorities, who have
been put at par in Article 30, have to be considered State-wise. [849-E, F]

G 3.12. Article 30(1) gives religious and linguistic minorities the right
to establish and administer educational institutions of their choice. The
use of the words "of their choice" indicates that even professional
educational institutions would be covered by Article 30. (850-C]

3.13. Admission of students to unaided minority educational
H institutions, viz., Schools where scope for merit based selection is
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 629
practically nil, cannot be regulated by the State or the University (except A
for providing the qualifications and minimum conditions of eligibHity in
the interest of academic standards). Right to admit students being an
essential facet of ri~ht to administer educational institutions of their choice,
as contemplated under Article 30 of the Constituti~n, the State
Government or the University may not be entitled to interfere with that B
right in respect of unaided minority institutions provided however that
the admission to the unaided educational institutions is on transparent
basis and 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, in the
matter of admissions to undergraduate Colleges and professional C
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. Observance of inter se merit amongst the applicants must be
ensured. In the case of aided professional institutions, it can also be
~ stipulated .that passing of common entrance test held by the State agency D
is necessary to seek admission. [850-E-H; 851-A]

3.14. 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 E
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.
{851-C, D) F
3.15. 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 basisofwhich admission will be granted
to different aided colleges by virtue of merit~ coupled with the reservation
policy of the State. In the case of such institutions, it will be permissible G
for the Government or the University to provide that consideration should
•
be shown to the weaker sections of the society. [851-E-Hl

3.16. So far as the statutory provisions ·regulating the facets of
administration is concerned, in case of an U;Daided minority educational
institution, the regulatory measure of control should be minimal and the H
630 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A conditions of recognition as well as conditions 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
B disciplinary action has to be evolved by the Management itself. 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
C 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 institutions.
D [852-C, D, F-H]

3.17. 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 30(1). Article 29(2) must be
E given its full effect. [853-F)

3.~8. 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.
F Reasonable surplus to meet cost of expansion and augmentation of facilities
does not, however, amount to profiteerir.g. (853-H; 854-A]

3. 19. 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
G expression "educational institutions" means institutions that impart
education, where "education" is as understood hereinabove. (854-C, D)

3.20. The right to establish and administer educational institutions._
is guaranteed under the Constitution to all citizens under Articles 19(1 )(g)
and 26, and to minorities specifically under Article 30. But this right will
H be subject to the provisions of Articles 19(6) and 26(a). However, minority
T.M.A. PAl FOUNDATIO~ v. STATE OF KARNATAKA 631
institutions will have a right to admit students belonging to the minority A
group, in the manner as discussed hereinabove. [854-E]

Unnikrishnan J.P. v. State ofA.P., {1993] I SCC 645, partly overruled.

State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525;
The State of Bombay v. Bombay Education Society and Ors., [1955] I SCC B
568 andRe : The Kerala Education Bill, [1957-19591 SCR 995, relied on.

Rev. Sidhajbhai Sabhai v. State of Bombay, [1963] 3 SCR 837,
distinguished.
Rev. Father W. ?roost v. State of Bihar, [1969] 2 SCR 73; D.A. V.
College v. State of Punjab, [1971) Supp. SCR 688; Gandhi Faizeam College C
v. Agra University, [1975] 3 SCR 810; Ahmedabad St. Xaviers College and
Anr. etc., v. State of Gujarat and Anr.; 11975] 1 SCR 173 and St. Stephen's
College v. University of Delhi, [1992] 1 SCC 558, overruled.
Rev. Bishop S.K. Patro v. State of Bihar, [1970] 1 SCR 172; State of
Kerala v. Very Rev. Mother Provincial, [1971]1 SCR 734 and D.A. V. College D
v. Punjab, [1971] Supp. SCR 677, rderred to.

4. In interpreting the provisions of a Statute or the Constitution it
is the duty of the Court to find out the legislative intent. It has been held
that Constituent Assembly debates are not conclusive but that, in a
Constitutional matter where the intent of the framers of the Constitution E
is to be ascertained, the Court should look into the proceedings and the
relevant data, including the speeches, which throw light on ascertaining
the intent. In considering the nature and extent of rights conferred on
minorities one must keep in mind the historical background and see how
and for what purpose Article 30 was framed. [805-B, C)
F
Keshavananda Bharati v. State of"' Kera/a, [1973] 4 SCC 225, followed.

R.S. Nayak v. A.R. Antu/ay, AIR (1984) SC 684, relied on.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 317 of
1993. (J

(Under Artde 32 of the Constitution of India)

WITH

Writ Petition (Civil) Nos. 252/79, 54-57, 2228/81, 2460, 2582, 2583- H
I .

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

A 84, 3362, 3517, 3602, 3603, 3634, 3635, 3636, 8398, 8391, 5621, 5035,
3701, 3702, 3703, 3704, 3715, 3728, 4648, 4649, 2479, 2480, 2547, 3475/
82, 7610, 4810, 9839, 9683-84/83, 12622-24/84, 119, 133/87, 620/89, 133/
92, 746, 327, 350, 613, 597, 536, 626, 444, 417; 523, 474, 485, 484, 355,
525,469, 392, 629, 399, 531, 603, 702, 628, 663, 284, 555, 343, 596,407,
B 737, 7~8, 747, 479, 610, 627, 685, 706, 726, 598, 482, 571/93, 295, 764, D.
No: 1741194, W.P. Nos. 331 , 446, 447/95, 364,435/96, 456, 454,447, 485/
97,356,357, 328/98, 199,294,279,35, 181,373,487,23/99,561 of2000,
6, 132 of2002, Civil Appeal Nos. 1236-1241, 2392/77,687/76,3179,3180,
3181' 3182, 1521-56, 3042-91/79,2929-31' 1464/80, 2271' 2443-46/81, 4020,
290, 10766/83,5042,5043/89,6147,5381/90, 71, 72, 73/91, 1890-91,2414,
c 2625/92, 4695-4746, 4754-4866/93, 5543-5544/94, 8098-8100, 1.1321/95,
4654-4658/97, 608, 3543, 3584-3585/98, 5053-5054 of 2000, 5647, 5648-
5649, 5650, 5651, 5652, 5653-5654, 5655, 5656/2001,2334/2002, S.L.P. (C)
Nos. 9950, 9951/79, 11526, 863/80, 12408/85, 8884/86, 12320/87, 14437,
18061-62/93, 904-05, 11620/94, 23421 /95,4372/96, 103~0, 10664/97, 1216,
D 9779-9786,6472-6474, 9793/98,5101,4480,4486/2002 T.C. (Civil) No. 26/
90 and T.P. (Civil) Nos. 1013-14 of 1993.

Harish N. Salve, Solicitor General, K.N. Raval, Additional Solicitor
General, K.K. Venugopal, B. Sen, H.W. Dhabe, Soli J. Sorabjee, P.P. Rao,
· Mahinder Anand, Anoop G. Chaudhary, Rakesh K. Dwivedi, Dinesh Dwivedi,
E Ms. K. Amareswari, F.S. Nariman, Dr. Rajeev Dhavan, Kapil Sibal, Sushil
Kumar, Indira Jaisingh, Ashok Grover, Anil B. Divan, G.L. Sanghi, K.
Parasaran, K. Rajendra Choudhury, Habibulla Basha, Dipankar P. Gupta, V.A.
Mohta, T.R. Andhyarujina, Shanti Bhushan, Salman Khurshid, K.C. Kaushik,
Preetesh Kapur, Ms. Aparjita Singh, Ms. Meenakshi Sakhardande, Ms.
Gayatri Goswami, Siddhartha Chowdhary, R.N. Poddar, B.K. Prasad, C.
F Radhakrishna, B.V. Balram Das, K.V. Vishwanathan, Ms. Revathy Raghavan,
Ms. Seema Bengani, Ajeet, Haripriya Padmanabhan, Ms. Diviya Kapur, S.C.
Mishra, Adv. Gent. U.P., Ajay K. Agarwal, Ravi P. Mehrotra, Arivind Verma,
C. Siddharth, Mahesh Chandra, Ms. Alka Agrawal, Ms. Anamika Agrawal,
Rajeev Sharma, Aarohi Bhalla, Garvesh Kabra, A.N. Jayaram Adv. Genl.,
Karnataka, Sanjay R Hegde, Satya Mitra, R. Anand Pamanabhan, K.R.
G Sasiprabhu, John Mahtew, R.B. Madoodkar, V.N. Raghupathy, S.S. Shinde,
A. Mariarputham, Ms. Aruna Mathur, G. Balaji, Ashok Kumar Pandey, Lokesh
Kumar, R.S. Suri~ Jai Prakash Dhanda, Ms. Raj Rani Dhanda, K.P.Singh,
Sunder Khatri, Satish K. Agnihotri, Sakesh Kumar, Prakash Shrivastava, R.M.
Sharma, Ranji Thomas, Ms. Bharati Upadhyaya, Javed M. Rao, Ms. Niranjana .,
H Singh, Abhishek Chaudhary, Saket Singh, B.B. Singh, Ajay K. Agrawal,
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA 633
Jatinder Kumar Bhatia, Ms. K. Madhavi Latha, A. Raghuvir, K. Subbarao, A
·.. T.V. Ratnam, Rajesh Pathak, Ashok Mathur, K.C. Kaushik, D.S. Mahra,
Manish Singhvi, S.C. Shanna, Dr. Roxna Swamy, A. Lodo, B. Subbayya
Shetty, Bharat Sangal, R.N. Keswani, Amitesh Kumar, Lakshmi Raman
Singh, Vivek Singh, Mohd. Taiyab Khan, Imran Qaisar, Adolf Mathew, C.
Mastan Naidu, Ms. Indu Malhotra, Ms. Pooja, K.V. Mohan, S. Ravindra Bhat, B
Naveen R. Nath, Ms. Anupama Grover, Rakesh K. Sharma, Siddharth Dave,
Brijesh Kalappa, P.R. Ramasesh, P.P. Singh, H.K. Puri, R. Jagannath Goulay,
M.K. Dua, Makarand D Adkar, B.E. Ahvad, S.D. Singh, Ejaz Maqbool, A. T.M.
Sampath, V. Balaji, Naresh Kaushik, S.C. Gupta, N.K. Roy, Rajesh Singh,
Madhu N. Naik, Ms. Madhu Sudan Naik, Ms. Shilpa Chohan, Ms. Lalita
Kaushik, B. Partha Sarthy, K.L. Shastry, Attar Singh, Kurshid Ahmed, E. M.S. C
Anam, Fazlin Anam, P.H. Parekh, E.R. Kumar, Krishna Srinivasan, Sanjiv Sen,
Atul Chitale, Ms. Suchitra Atul Chitale, Lalita Kohli, Manoj Swarup, Ms.
Maulini Swarup, A. Mariarputham, Parmanand Gaur, S.N. Bhat, Ms. V.D.
Khanna, Ms. Manik Karanjawala, Ms. Varuna B Gugnani, Ms. Binu Tamta,
S. Udaya Kumar Sagar, Prateek Jalan, P.C. Shanna, Ms. Asha Nayar, N.P. D
Agarwalla, Pavan Kumar, Ms. P. Niroop, Subhash Sharma, Shambhunath
~ Singh, N.R. Choudhary, S. John Chandraraj, Pradeep Tiwary, S. Uppal, Ilyas
Ali, V. Balachandran, P. Narasimhan, E.C. Agrawala, Rishi Agarwal, Mahesh
Agarwal, Alok Agarwal, Manu Krishnan, Dr. Jose P. Verghese, S.P. Shanna,
C. Mastan Naidu, Sanjay Jain, O.C. Mathur, Ms. Meera Mathur, B.A.
Ranganadhan, Ashish Sharma, Shri Narain, Sandeep Narain, Ms. Anjali, E
Krishan Mahajan, Ms. Chandra Shushan Prasad, Ruchira Gupta, Ms. Gurvinder
Suri, Jagjit Singh Chhabra, Rajeev Merkhedkar, Ms. Madhur, C. Badri Nath
Babu, Bimal Roy Jad, C.M. Angodi, S. Nanda Kumar, V. Vijayan, L.K.
Pandey, Rohit Mammen Alex, M. Veerappa, Prem Malhotra, lndeevar
Goodwill, Tara Chandra Shanna, K.R. Nagaraja, Raj Kumar Mehta, Ms. Kiran
Suri, Ms. Bina Gupta, Rajeev Kumar Shanna, 8.8. Singh, Ms. Rani Chhabra, F
Ravindra Kumar, A. V. Rangam, A.S. Bhasme, MJ. Paul, Ms. Rachana Joshi
Issar, Shivaji M Jadhav, M.K. Dua, E.C. Vidya Sagar, H.S. Parihar, Umesh
Bhagwat, S.K. Mehta, Syed Ali Ahmad, Tanweer Ahmad, Mohan Pandey, G.K.
Bansal, Chander Shekhar Ashri, Shiva Pujan Singh, R.C. Venna, S. Muralidhar,
B. Partha Sarthy, H.A. Raichura, M.T. George, K.S. Bhati, S.V. Deshpande, G
Rathin Das, Ms. B. Sunita Rao, Ms. Lily Isabel Thomas, Krishnamurthi Swami,
N. Ganpathy, Mahabir Singh, Rakesh K. Shanna, Bhargava V. Desai, Sanjeev
Kr. Singh, Ms. Vanita Mehta, Ms. Pratibha M. Singh, Ms. Kavita Wadia, R.D.
Upadhyay, Rudreshwar Singh, Tapesh Kr. Singh, Shishir Pinaki, Prabhat Kr.
Singh, Aneesh Ahmed, R.P. Wadhwani, Anand Nandan, Alok Kumar, T.V.
Ratnam, M.P. Jha, J. Nagar. Arvind Varma, Ms. Sumita Mukherjee, Vishwajit H
634 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Singh, Prashant Kumar, T. Raja, Anil Kumar Tandale, P.K. Manohar, M.K.D.
Namboodiri, Ms. Baby Krishnan, Ms. Anu Mehta, V.K. Sidharthan, Deba
Prasad Mukherjee, Sudhir Nandrajog, Nikhil Nayyar, Ms. Bina Madhavan, P.
Prasanth, S.U.K.. Sagar, Ms. J. Godbole, Naveen Prakash, Rahul Singh, Rana
Mukherjee, Ms. Indira Sawhney, Sanjay Sen, Sushil Kumar Jain, Pradeep
Aggarwal, A.P. Dhamija, A. Mishra, Ms. Anjali Doshi, Ms. Ruchi Kohli, L.P.
B Singh, Ms. Pratibha Jain, O.K. Jain, Bhagchand Jain, A.P. Jain, Sanjay Kr.
Pathak, Ms. Deepti Jain, Hemant S. Jain, R.C. Papriwal, J.M. Khanna, T.N.
Bhat, Ms. Shefali Khanna, B.K. Punj, Subhash Chandra Jain, Ms. S.K. Mehta,
Ms. Annapoorani, V.G. Pragasam, Ms. Chandan Ramamurthi, Ms. Lalit Mohini
Bhat, Sudrash Menon, Ambrish Kumar, Ugra Shankar Prasad, D.N. Gupta,
C Rakesh K. Sharma, Ms. Janaki Ramachandran, S.C. Sharma, Dr. M.P. Raju,
lsaae Mohanlal, Pravir Chaudhary, Senthil Jagadeesan, V. Ramasubramnian,
Ms. Madhu Sikri, K.R. Nambiar, Subhash C. Sharma, S.W. Kanagaraj, T.M.
Reddy, Sudarsh Menon, R. Nedumaran, K.K. Mani, R. Ayyam Perumal, S.
Srinivasan, S.R. Setia, S. John Chandraraj, Dr. A. Francis Julian, Sumit Kumar,
M.A. Chinnasamy, Pradeep Tiwary, K. Swami, K. Ilias Ali, Suren Kumar
D Uppal, Dr. R. Prakash, R.N. Reshwani, Ram Lal Roy, Dr. O.K. Jain, Zaki
Ahmad Khan, Imtiaz Ahmed, Ms. Naghma Imtiaz, Anis Suhrawardy, Dr. Nafis .
A. Siddiqui, Anis Ahmed Khan, M. Qamaruddin, Ms. M. Qamaruddin, Ambar
Qamaruddin, Manish Goswami, Pratap C. Mahapatra, J.M. Khanna, Shakil
Ahmed Syed, Ms. S. Subhashini, S.K. Puri, Rajesh Srivastava, Uljwal Banerjee,
E Ms. Anandita Gupta, Vivek Gambhir, P.N. Jha, B.K. Pal, A.K. Sanghi, Sardar
Ajit Singh, Badar D. Ahmad, Ms. Sunanda Roy, Jayant Tripathi, Vivek N.
Sharma, Pramod Swarup, Praveen Swarup, Ms. Pareena Swarup, Amit Singh
Rathi, Vishal Gupta, Dr. Anil Kumar Mittal, Prashant Bhushan, Bijan Kumar
Ghosh, Ms. Purnima Bhat, M.M. Kashyap, U.A. Rana, M.J.S. Rupal,
Lakshman, R.B. Masoodkar, Uday Gupta, M.N. Shroff, N. Ganapathy, Ashok
F K. Mahajan, Ms. Meenakshi Arora, G. Umapathy, S. Jayakumar, Shailendra
Bhardwaj, Rakesh K. Sharma, Ms. Anupama Grover and Ms. Nanita Sharma,
for the appearing parties.

The Judgments of the Court were delivered.by

G KIRPAL, CJ. 1. India is a land of diversity - of different castes,
peoples, communities, languages, religions and culture. Although these people
enjoy complete political freedom, a vast part of the multitude is illiterate and
lives below the poverty line. The single most powerful tool for the upliftment
and progress of such diverse communities is education. The state, with its
H limited resources and slow-moving machinery, is unable to fully develop the
T.M.A. PAl FOUNDATION~·- STATE OFKARNATAKA (KIRPAL, CJ] 635
genius of the Indian people. Very often, the impersonal education that is A
imparted by the state, devoid of adequate material content that will make the
students self-reliant, only succeeds in producing potential pen-pushers, as a
result of which sufficient jobs are not available.

2. It is in this scenario where there is a lack of quality education and
adequate number of schools and colleges that private educational institutions B
have been established by educationists, philanthropists and religious and
linguistic minorities. Their grievance is that the unnecessary and unproductive
load on their back in the fonn of governmental control, by way of rules and
regulations, has thwarted the progress of quality education. It is their contention
that the government must get off their back, and that they should be allowed C
to provide quality education uninterrupted by unnecessary rules and
regulations, laid down by the bureaucracy for its own self-importance. The
private educational institutions, both aided and unaided, established by
minorities and non-minorities, in their desire to break free of the unnecessary
shackles put on their functioning as modem educational institutions and seeking
to impart quality education for the benefit of the community for whom they D
were established, and others, have filed the present writ petitions and appeals
asserting their right to establish and administer educational institutions of
their choice unhampered by rules and regulations that unnecessarily impinge
upon their autonomy.

3. The hearing of these cases has had a chequered history. Writ Petition E
No.350 of 1993 filed by the Islamic Academy of Education and connected
petitions were placed before a Bench of 5 Judges. As the Bench was prima
facie of the opinion that Article 30 did not clothe a minority educational
institution with the power to adopt its own method of selection and the
correctness of the decision of this Court in St. Stephen's College v. University . p
of Delhi, [ 1992] 1 SCC 558 was doubted, it was directed that the questions
that arose should be authoritatively answered by a larger Bench. These cases
were then placed before a Bench of 7 Judges. The questions framed were
recast and on 6th February, 1997, the Court directed that the matter be placed
before a Bench of at least 11 Judges, as it was felt that in view of the Forty-
Second Amendment to the Constitution, whereby "education" had been - G
included in Entry 25 of List IU of the Seventh Schedule, the question of who
would be regarded as a "minority" was required to be considered because the
earlier case laws related to the pre-amendment era, when education was only
in the State List. When the cases came up for hearing before an eleven Judge
Bench, during the course of hearing on 19th March, 1997, the following H
636 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A order was passed:-
"Since a doubt has arisen during the course of our arguments as to
whether this Bench would feel itself bound by the ratio propounded
in - In Re Kerala Education Bill, [1957-1959] SCR 955 and the
Ahmedabad St. Xaviers College Society v. State ofGujarat, [1975]1
B SCR 173, it is clarified that this sized Bench would not feel itself
inhibited by the views expressed in those cases since the present
endeavour is to discern the true scope and interpretation of Article
30(1) of the Constitution, which being the dominant question would
require examination in its pristine purity. The factum is recorded."
c 4. When the hearing of these cases commenced, some questions out of
the eleven referred for consideration were reframed. We propose to give
answers to these questions after examining the rival contentions on the issues
arising therein. ...
5. On behalf of all these institutions, the learned counsels have submitted
D that the Constitution provides a fundamental right to establish and administer
educational institutions. With regard to non-minorities, the right was stated to ..
be contained in Article 19( 1)(g) and/or Article 26, while in the case of linguistic
and religious minorities, the submission was that this right was enshrined and
protected by Article 30. It was further their case that private educational
E institutions should have full autonomy in their administration. While it is
necessary for an educational institution to secure recognition or affiliation,
and for which purpose rules and regulations or conditions could be prescribed
pertaining to the requirement of the quality of education to be provided, e.g.,
qualifications of teachers, curriculum to be taught and the minimum facilities
which should be available for the students, it was submitted that the state
F should not have a right to interfere or lay down conditions with regard to the ·
admi~istration of those institutions. In particular, objection was taken to the
nominations by the state on the governing bodies of the private institutions,
as well as to provisions with regard to the manner of admitting students, the
fixing of the fee structure and recruitment of teachers through state channels.
G. 6. The counsels for these educational institutions, as well as the Solicitor
General of India, appearing on behalf of the Union of India, urged that the
decision of this Court in Unni Krishnan, J.P. and Others v. State of Andhra
Pradesh and Ors., [1993] 1 SCC 645 case required reconsideration. lt was
submitted that the scheme that had been framed in Unni Krishnan's case had
H imposed unreasonable restrictions on the administration of the private
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL,CJ.] 637
educational institutions, and that especially in the case of minority institutions, A
the right guaranteed to them under Article 30(1) stood infringed. It was also
urged that the object that was sought to be achieved by the scheme was, in
fact, not achieved.

7. On behalf of the private minority institutions, it was submitted that
on the correct -interpretation of the various provisions of the Constitution, and B
Articles 29 and 30 in particular, the minority institutions have a right to
establish and administer educational institutions of their choice. The use of
the phrase "of their choice" in Article 30( I) clearly postulated that the religious
and linguistic min_orities"'could establish and administer any type of educational
institution, whether it was a school, a degree college or a professional college; C
it was argued that such an educational institution is invariably established
primarily for the benefit of the religious and linguistic minority, and it should
be open to such institutions to admit students of their choice. While Article
30(2) was meant to ensure that. these minority institutions would not be
denied aid on the ground that they were managed by minority institutions, it
was submitted that no condition which curtailed or took away the minority D
character of the institution while granting aid could be imposed. In particular,
it was submitted that Article 29(2) could not be applied or so interpreted as
to completely obliterate the right of the minority institution to grant admission
to the students of its own religion or language. It was also submitted that ·
while secular laws relating to health, town planning, etc., would be applicable, E
no other rules and regulations could be framed that would in any way curtail
or interfere with the administration of the minority educational institution. It
was emphasized by the learned counsel that the right to administer an
educational institution included the right to constitute a governing body,
appoint teachers and admit students. It was further submitted that these were
the essential ingredients of the administration of an educational institution, F
and no fetter could be put on the exercise of the right to administer. It was
conceded that for the purpose of seeking recognition, qualifications of teachers
could be stipulated, as also the qualifications of the students who could be
admitted; at the same time, it was argued that the manner and mode of
appointment of teachers and selection of students had to be within the exclusive G
domain of the educational institution.

8. On behalf of the private non-minority unaided educational institutions,
it was contended that since secularism· and equality were part of the basic
structure of the Constitution, the provisions of the Constitution should be
interpreted so that the rights of the private non-minority unaided institutions H
638 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A were the same as that of the minority institutions. It was submitted that while
reasonable restrictions could be imposed under Article 19(6), such private
institutions should have the same freedom of administration of an unaided
institution as was sought by the minority unaided institutions.

9. The learned Solicitor General did not dispute the contention that the
B right to establish an institution had been conferred on the non·minorities by
Articles 19 and 26, and on the religious and linguistic minorities by Article
30. He agreed with the submission of the counsels for the appellants that the
Unni Krishnan decision required reconsideration, and that the private unaided
educational institutions were entitled to. greater autonomy. He, however,
C contended that Article 29(2) was applicable to minority institutions, and the
claim of the minority institutions that they could preferably admit students of
their own religion or language to the exclusion of the other communities was
impermissible. In other words, he submitted that Article 29(2) made it
obligatory even on the minority institutions not to deny admission on the
ground of religion, race, caste, language or any of them.
D
10. Several States have totally disagreed with the arguments advanced
by the learned Solicitor General with regard to the applicability of Article
29(2) and 30(1 ). The States of Madhya Pradesh, Chattisgarh and Rajasthan
have submitted that the words "their choice" in Article 30(1) enabled the
minority institutions to admit members of the minority community, and that
E the inability of the minority institutions to admit others as a result of the
exercise of "their choice" would not amount to a denial as contemplated
under Article 29(2). The State of Andhra Pradesh has not expressly referred
to the inter-play between Article 29(2) and Article 30( I), but has stated that
"as the minority educational institutions are intended to benefit the minorities,
p a restriction that at least 50 per cent of the students admitted should come
from the particular minority, which has established the institution, should be
stipulated as a working rule", and that an institution which fulfilled the
follo~ing conditions should be regarded as minority educational institutions:

1. All the office bearers, members of the executive committee of
G the society must necessarily belong to the concerned religious/
linguistic minority with~ut exception.
2. The institution should admit only the concerned minority
candidates to the extent of sanctioned intake permitted to be
filed by the respective managements.
H
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [KIRPAL, CJ.] 639
and that the Court "ought to permit the State to regulate the intake in minority A
educational institutions with due regard to the need of the community in the
area which the institution is intended to serve. In no case should such intake
exceed 50% of the total admissions every yef;lr."

11. The State of Kerala has submitted, again without express reference
to Article 29(2), "that the constitutional right of the minorities should be B
extended to professional education also, but while limiting the right of the
minorities to admit students belonging to their community to 50% of the total
intake of each minority institution".

12. The State of Karnataka has submitted that "aid is not a matter of C
right but receipt thereof does not in any way dilute the minority character of
the institution. Aid can be distributed on non-discriminatory conditions but
in so far as minority institutions are concerned, their core rights will have to
be protected.

13. On the other hand, the States of Tamil Nadu, Punjab, Maharashtra, D
.West Bengal, Bihar and Uttar Pradesh have submitted that Article 30(1) is
subject to Article 29(2), arguing that a minority institution availing of state
aid loses the right to admit members of its community on the basis of the
need of the community.

14. The Attorney General, pursuant to the request made by the court, E
made submissions on the constitutional issues in a fair and objective manner.
We record our appreciation for the assistance rendered by him and the other
learned counsel.

15. We may observe here that the counsels were informed that it was
not necessary for this Bench to decide four of the questions framed, relating F
to the issue of who could be regarded as religious minorities; no arguments
were addressed in respect thereto.

16. From the arguments aforesaid, five main issues arise for
consideration in these cases, which would encompass all the eleven questions
framed that are required to be answered. G
17. We will first consider the arguments of the learned counsels under
these heads before dealing with the questions now remaining to be answered.

1. IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL
H
640 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A INSTITUTIONS AND IF SO, UNDER WHICH PROVISION?

18. With regard to the establ ish~ent of educational institutions, three
Articles of the Constitution come into play. Article 19( I)(g) gives the right
to all the citizens to practice any profession or to carry on any occupation,
trade or business; this right is subject to restrictions that may be placed under
B Article 19(6). Article 26 gives the right to every religious denomination to
establish and maintain an institution for religious purposes, which would
include an educational institution. Article 19(1 )(g) and Article 26, therefore,
confer rights on all citizens and religious denominations to establish and
maintain educational institutions. There was no serious dispute that the majority
C community as well as linguistic and religious minorities would have a right
under Articles 19(1 )(g) and 26 to establish educational institutions. In addition,
Article 30( I), in no uncertain tenns, gives the right to the religious and
linguistic minorities to establish and administer educational institutions of
their choice.

D 19. We will first consider the right to establish- and administer an
educational institution under Article 19( I)(g) of the Constitution, and deal
with the right to establish educational institutions under Article 26 and 30 in
the next part of the judgment while considering the rights of the minorities.

20. Article 19( I)(g) employs four expressions, viz., profession,
E occupation, trade and business. Their fields may overlap, but each of them
does have a content of its own. Education is per se regarded as an activity
that is charitable in nature [See The State of Bombay v. R.M.D.
Chamarbaugwala, [1957) SCR 874: AIR (1957) SC 699. Education has so
far not been regarded as a trade or business where profit is the motive. Even
F if there is any doubt about whether education is a profession or not, it does
appear that education will fall within the meaning of the expression
"occupation". Article l9(l)(g) uses the four expressions so as to cover all
activities of a citizen in respect of which income or profit is generated, and
which can consequently be regulated under Article 19(6). In Webster's Third
New International Dictionary atpage 1.650, "ocr . m" is, inter alia, defined
G as "an activity in which one engages" or " ... :-: ., trade, profession or other
means of earning a living".

21. In Corpus Juris Secundum, Volume LXVII, the word "occupation"
is defined as under:-.

H "The word "occupation" also is employed as referring to that which
T.M.A. PAl FOUNDATION v. STATE OFKARNATAKA [KIRPAL, CJ.] 641
occupies time and attention; a calling; or a trade; and it is only as A
employed in this sense that the word is discussed in the following
paragraphs.

There is nothing ambiguous about the word "occupation" as it is used
in the sense of employing one's time. It is a relative term, in common
use with a well-understood meaning, and very broad in its s~ope and B
significance. It is described as a generic and very comprehensive
term, which includes every species of the genus, and compasses the
incidental, as well as the main, requirements of one's vocation, calling,
or business. The word "occupation" is variously defined as meaning
the principal business of one's life; the principal or usual business in C
which a man engages; that which principally takes up one's time,
thought, and energies; that which occupies or engages the time and
attention; that particular business, profession, trade, or calling which
engages the time and efforts of an individual; the employment in
which one engages, or the vocation of one's life; the state of being
occupied or employed in any way; that activity in which a person, D
natural or artificial, is engaged with the element of a degree of
permapency attached.'~

22. A F:hre Jrige Bmdl :in Sodan Singh and Ors. v. New Delhi
Municipal Committee and Ors., [ 1989] 4 SCC 155 at page 174, para 28,
observed as follows: E
" ...... The word occupation has a wide meaning such as any regular
work, profession, job, principal activity, employment, business or a
calling in which an individual is engaged....... The object of using four
analogous and overlapping words in Article l9(l)(g) is to make the
guaranteed right as comprehensive as possible to include an the F
avenues and modes through which a man may earn his livelihood. In
a nutshell the guarantee takes into its fold any activity carried on by
a citizen of India to earn his living....... ".

23. In Unni Krishnan's case, at page 687, para 63, while referring to G
education, it was observed as follows:-

" ....... It may perhaps fall under the category of occupation provided
no recognition is sought from the State or affiliation from the
University is asked on the basis that it is a fundamental right.. .."

24. While the conclusion that "occupation" comprehends the H
642 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A establishment of educational institutions is correct, the proviso in the aforesaid
observation to the effect that this is so provided no recognition is sought from
the state or affiliation from the concerned university is, with the utmost
respect, erroneous. The fundamental right to establish an educational institution
cannot be confused with the right to ask for recognition or affiliation. The
exercise of a fundamental right may be controlled in a variety of ways. For
B example, the right to carry on a business does not entail the right to carry on
a business at a particular place. The right to carry on a business may be
...
subject to licensing laws so that a denial of the licence prevents a person
from carrying on that particular business. The question of whether there is a
fundamental right or not cannot be dependent upon whether it can be made
C the subject matter of controls.

25. The estahlishment and running of an educational institution where
a large number of persons are employed as teachers or administrative staff,
and an activity is carried on that results in the imparting of knowledge to the
students, must necessarily be regarded as an occupation, even if there is no
D element of profit generation. It is difficult to comprehend that education, per
se, will not fall under any of the four expressiom: in Article 19(1)(g).
"Occupation" would be an activity of a person undertaken as a means of
livelihood or a mission in life. The above quoted observations in Sodan
Singh's case correctly interpret the expression "occupation" in Article 19(l)(g).
E 26. The right to establish and maintain educational institutions may
also be source to Article 26(a), which grants, in positive terms, the right to
every religious denomination or any section thereof to establish and maintain
institutions for religious and charitable purposes, subject to pub I ic order,
morality and health. Education is a recognized head of charity. Therefore,
p religious denominations or sections thereof, which do not fall within the
special categories carved out in Article 29( 1) and 30( 1), have the right to
establish and maintain religious and educational institutions. This would allow
members belonging to any religious denomination, including the majority
religious community, to set up an educational institution. Given this, the
phrase "private educational institution" as used in this judgment would include
G not only those educational institutions set up by secular persons or bodies,
but also educational institutions set up by religious denominations; the word
"private" is used in contradistinction to government institutions.

2. DOES UNNIKRISHNAN'S CASE REQUIRE RECONSIDERATION?

H 27. In the case of Mohini Jain (Miss) v. State of Karnataka and Ors.,
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 64 ".)
[1992] 3 sec 666, the challenge was to a notification of June 1989, which A
provided for a fee structure, whereby for government seats, the tuition fee
was Rs. 2,000 per annum, and for students from Karnataka, the fee was Rs.
25,000 per annum, while the fee for Indian students from outside Karnataka,
under the payment category, was Rs. 60,000 per annum. It had been contended
that charging such a discriminatory and high fee violated constitutional B
guarantees and rights. This attack was sustained, and it was held that there
was a fundamental right to education in every citizen, and that the state was
duty bound to provide the education, and that the private institutions that
discharge the state's duties were equally bound not to charge a higher fee
than the government institutions. The Court then held that any prescription
of fee in excess of what was payable in government colleges was a capitation C
fee and would, therefore, be illegal. The correctness of this decision was
challenged in Unni Krishnan's case, where it was contended that if Mohini
Jain's ratio was applied, the educational institutions would have to be closed
down, as they would be wholly unviable without appropriate funds, by way
of tuition fees, from their students.
D
28. We will now examine the decision in Unni Krishnan's case. In this
case, this Court considered the conditions and regulations, if any, which the
state could impose in the running of private unaided/aided recognized or
affiliated educational institutions conducting professional courses such as
medicine, engineering, etc. The extent to which the fee could be charged by E
such an institution, and the manner in which admissions could be granted
was also considered. This Court held that private unaided recognized/affiliated
educational institutions running professional courses were entitled to charge
a fee higher than that charged by government institutions for similar courses,
but that such a fee could not exceed the maximum limit fixed by the state.
It held that commercialization of education was not permissible, and "was F
opposed to public policy and Indian tradition and therefore charging capitation
fee was illegal." With regard to private aided recognized/affiliated educational
institutions, the Court upheld the power of the government to frame rules and
regulations in matters of admission and fees, as well as in matters such as
recruitment and conditions of service of teachers and staff. Though a question
was raised as to whether the setting up of an educational institution could be G
regarded as a business, profession or vocation under Article 19( 1)(g), this
question was not answered. Jeevan Reddy, J., howeve·r, at page 751, para
197, observed as follows:-

" ....... While we do not wish to express any opinion on the question H
644 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A whether the right to establish an educational institution can be said to
be carrying on any "occupation" within the meaning of Article
19( 1)(g), - perhaps, it is - we are certainly of the opinion that such
activity can neither be a trade or business nor can it be a profession
within the meaning of Article 19(1 )(g). Trade or business normally
connotes an activity carried on with a profit motive. Education has
B never been commerce in this country......."

29. Reliance was placed on a decision of this Court in Bangalore Water
Supply and Sewerage Board V. A. Rajappa and Ors., [1978] 2 sec 213,
wherein it had been held that educational institutions would come within the
C, expression "industry" in the Industrial Disputes Act, and that, therefore,
education would come under Article 19(1 )(g). But the applicability of this
decision was distinguished by Jeevan Reddy, J., observing that "we do not
think the said observation (that education as industry) in a different context
has any application here". While holding, on an interpretation of Articles 21,
41, 45 and 46, that a citizen who had not completed the age of 14 years had
D a right to free education, it was held that such a right was not available to
citizens who were beyond the age of 14 years. It was further held that private
educational institutions merely supplemented the effort of the state in educating
the people. No private educational institution could survive or subsist without
recognition and/or affiliation granted by bodies that were the authorities of
E the state. In such a situation, the Court held that it was obligatory upon the
authority .granting recognition/affiliation to insist upon such conditions as
were appropriate to ensure not only an education of requisite standard, but
also fairness and equal treatment in matters of admission of students. The
Court then formulated a scheme and directed every authority granting
recognition/affiliation to impose that scheme upon institutions seeking
F recognition/affiliation, even if they. were unaided institutions. The scheme
that was framed, inter alia, postulated (a) that a professional college should
be established and/or administered only by a Society registered under the
Societies Registration Act, 1860, or the corresponding Act of a State, or by
a Public Trust registered under the Trusts' Act, or under the Wakfs Act, and
that no individual, firm, company or other body of individuals would be
G permitted to establish and/or administer a professional college (b) that 50%
of the seats in every professional college should be filled by the nominees of
the Government or University, selected on the basis of merit determined by
a common entrance examination, which will be referred to as "free seats";
the remaining 50% seats ("payment seats") should be filled by those candidates
H . who pay the fee prescribed therefor, and the allotment of students against
T.M.A. PAl FOUNDATIONv. STATE OF KARNATAKA [KIRPAL, CJ.] 645
payment seats should be done on the basis of inter se merit detennined on A
the same basis as in the case of free seats (c) that there should be no quota
reserved for the management or for any family, caste or community, which
may have established such a college (d) that it should be open to the
professional college to provide for reservation of seats for constitutionally
permissible classes with the approval of the affiliating university (e) that the B
fee chargeable in each professional college should be subject to such a ceiling
as may be prescribed by the appropriate authority or by a competent court (f)
that every state government should constitute a committee to fix the ceiling
on the fees chargeable by a professional college or class of professional
colleges, as the case may be. This committee should, after hearing the
professional colleges, fix the fee once every three years or at such longer C
intervals, as it may think appropriate (g) that it would be appropriate for the
University Grants Commission to frame· regulations under its Act regulating
the fees that the affiliated colleges operating on a no grant-in-aid basis were
entitled to charge. The AICTE, the Indian Medical Council and the Central
Government were also given similar advice. The manner in which the seats
were to be filled on the basis of the common entrance test was also indicated. D

30. The counsel for the minority institutions, as well as the Solicitor
General, have contended that the scheme framed by this Court in Unni
Krishnan's case was not warranted. It was represented to us that the cost
incurred on educating a ~tudent in an unaided professional college was more E
than the total fee, which is realized on the basis of the formula fixed in the
scheme. This had resulted in revenue shortfalls. This Court, by interim orders
subsequent to the decision in Unni Krishnan's case, had permitted, within the
payment seats, some percentage of seats to be allotted to Non-Resident Indians,
against payment of a higher amount as detennined by the authorities. Even
thereafter, sufficient funds were not available for the development of those F
educational institutions. Another infinnity which was pointed out was that
experience has shown that most of the "free seats" were generally occupied
by students from affluent families, while students from less affluent families
were required to pay much more to secure admission to "payment seats".
This was for the reason that students from affluent families had better school G
education and the benefit of professional coaching facilities and were, therefore,
able to secure higher merit positions in the common entrance test, and thereby
secured the free seats. The education of these more affluent students was in
a way being cross-subsidized by the financially poorer students who, because
of their lower position in the merit list, could secure only "payment seats".
It was also submitted by the counsel for the minority institutions that Unni H
646 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A Krishnan's case was not applicable to the minority institutions, but that
notwithstanding this, the scheme so evolved had been made applicable to
them as. well.

31. Counsel for the institutions, as well as the Solicitor General,
submitted that the decision in Unni Krishnan's case, insofar as it had framed
B the scheme relating to the grant of admission and the fixing of the fee, was
unreasonable and invalid. However, its conclusion that children below the
age of 14 had a fundamental right to free education did not call for any
interference.

32; It has been submitted by the learned counsel for the parties that the
C implementation of the scheme by the States, which have amended their rules
and regulations, has shown a number of anomalies. As already noticed, 50%
of the seats are to be given on the basis of merit determined after the conduct
of a common entrance test, the rate of fee being minimal. The "payment
seats" which represent the balance number, therefore, cross-subsidize the
D "free seats". The experience of the educational institutions has been that
students who come from private schools, and who belong to more affluent
families, are able to secure higher positions in the merit list of the common
entrance test, and are thus able to seek admission to the "free seats".
Paradoxically, it is the students who come from less affluent families, who
are normally able to secure, on the basis of the merit list prepared after the
E common entrance test, only "payment seats".

33. It was contended by petitioners' counsel that the implementation of
the Unni Krishnan scheme has in fact ( 1) helped the privileged from richer
urban families, even after they ceased to be comparatively meritorious, and
F (2) resulted in economic losses for the educational institutions concerned,
and made them financially unviable. Data in support of this contention was
placed on record in an effort to persuade this Court to hold that the scheme
had failed to achieve its object.

34. Material has also been placed on the record in an effort to show
G that the total fee realized from the fee fixed for "free seats" and the "payment
seats" is actually less than the amount of expense that is incurred on each
student admitted to the professional college. It is because there was a revenue
shortfall that this Court had permitted an NRI quota to be carved out of the
50% payment seats for which charging higher fee was permitted. Directions
were given to UGC, AICTE, Medical Council of India and Central and State
H governments to regulate or fix a ceiling on fees, and to enforce the same by
T.M.A. PAl FOUNDATION,.. STATE OF KARNATAKA [KIRPAL, CJ.] 647
imposing conditions of affiliation/permission to establish and run the A
institutions.

35. It appears to us that the scheme framed by this Court and thereafter
followed by the governments was one that cannot be called a reasonable
restriction under Article 19(6) of the Constitution. Normally, the reason for
establishing an educational institution is to impart education. The institution B
thus needs qualified and experienced teachers and proper facilities and
equipment, all of which require capital investment. The teachers are required
to be paid properly. As pointed out above, the restrictions imposed by the
scheme, in Unni Krishnan's case, made it difficult, if not impossible, for the
educational institutions to run efficiently. Thus, such restrictions cannot be C
said to be reasonable restrictions.

36. The private unaided educational institutions impart education, and
that cannot be the reason to take away their choice in matters, inter alia, of
. selection of students and fixation of fees. Affiliation and recognition has to
be available to every institution that fulfills the conditions for grant of such D
affiliation and recognition. The private institutions are right in submitting
that it is not open to the Court to insist that statutory authorities should
impose the terms of the scheme as a condition for grant of affiliation or
recognition; this completely destroys the institutional autonomy and the very
objective of establishment of the institution.
E
37. The Unni Krishnan judgment has created certain problems, and
raised thorny issues. In its anxiety to check the commercialization of education,
a scheme of "free" and "payment" seats was evolved on the assumption that
the economic capacity of the first 50% of admitted students would be greater
than the remaining 50%, whereas the converse has proved to be the reality.
F
In this scheme, the "payment seat" student would not only pay for his own
seat, but also finance the cost of a "free seat" classmate. When one considers
the Constitution Bench's earlier statement that higher education is not a
fundamental right, it seems· unreasonable to compel a citizen to pay for the
education of another, more so in the unrealistic world of competitive
examinations which assess the merit for the purpose of admission solely on G
the basis of the marks obtained, where the urban students always have an
edge over the rural students. In practice, it has been the case of the marginally
less merited rural or poor student bearing the burden of a rich and well-
exposed urban student.

38. The scheme in Unni Krishnan's case has the effect of nationalizing H
648 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A education in respect of important features, viz., the right of a private unaided
institution to give admission and to fix the fee. By framing this scheme,
which has led to the State Governments legislating in confonnity with the
scheme, the private institutions are indistinguishable from the government
institutions; curtailing all the essential features of the right of administration
of a private unaided educational institution can neither be called fair or
B reasonable. Even in the decision in Unni Krishnan's case, it has been observed
by Jeevan Reddy, J., at page 749, para 194, as follows:

"The hard reality that emerges is that private educational institutions
are a necessity in the present day context. It is not possible to do
without them because the Governments are in no position to meet the
c demand - particularly in the sector of medical and technical education
which call for substantial outlays. While education is one of the most
important functions of the Indian State it has no monopoly therein.
Private· educational institutions - including minority educational
institutions - too have a role to play."
D
39. That private educational institutions are a necessity becomes evident
from the fact that the number of govemment~inaintained professional colleges
has more or less remained stationary, while more private institutions have
been established. For example, in the State of Karnataka there are 19 medical
colleges out of which there are only 4 government-maintained medical
E colleges. Similarly, out of 14 Dental Colleges in Kamataka, only one has
been established by the government, while in the same State, out of 51
Engineering Colleges, only 12 have been established by the government. The
aforesaid figures clearly indicate the important role played by private unaided
educational institutions, both minority and non-minority, which cater to the
F needs of students seeking professional education.
40. Any system of student selection would be unreasonable if it deprives
the private unaided institution of the right of rational selection, which it
devised for itself, subject to the minimum qualification that may be prescribed
and to some system of computing the equivalence between different kinds of
G qualifications, like a common entrance test. Such a system of selection can
involve both written and oral tests for selection, based on principle of fairness.

41. Surrendering the total process of selection to the state is
unreasonable, as was sought to be done in the Unni Krishnan scheme. Apart
from the decision in St. Stephen's College v. University of Delhi, [ 1992] I
H sec sss, which recognized and upheld the right of a minority aided institution
T.M.A. PAl FOUNDATION v. STATE OFKARNATAKA [KIRPAL, C.l.] 649

to have a rational atlmission procedure of its own, earlier Constitution Bench A
decisions of this Court have, in effect, upheld such a right of an institution
devising a rational manner of selecting and admitting students.

42. In R. Chitralekha and Anr. v. State of Mysore and Ors., [1964] 6
SCR 368, while considering the validity of a viva-voce test for admission to
a government medical college, it was observed at page 380 that colleges run B
by the government, having regard to financial commitments and other relevant
considerations, would only admit a specific number of students. It had devised
a method for screening the applicants for admission. While upholding the
order so issued, it was observed that "once it is conceded, and it is not
disputed before us, that the State Government can run medical and engineering C
colleges, it cannot be denied the power to a~mit such qualified students as
pass the reasonable tests laid down by it. This is a power which every private
owner ofa College will have, and the Government which runs its own Colleges
cannot be denied that power". (emphasis added)

43. Again, in Minor P. Rajendran v. State of Madras and Ors., [1968] D
2 SCR 786, it was observed at page 795 that "so far as admission is concerned,
it has to be made by those who are in control ofthe Colleges, and in this case
the Government, because the medical colleges are Government colleges
affiliated to the University. In these circumstances, the Government was entitled
to frame rules for admission to medical colleges controlled by it subject to
the rules of the university as to eligibility and qualifications. " The aforesaid E
observations clearly underscore the right of the colleges to frame rules for
admission and to admit students. The only requirement or control is that the
rules for admission must be subject to the rules of the university as to eligibility
and qualifications. The Court did not say that the university could provide the
manner in which the students were to be selected. F
44. In Kumari Chitra Ghosh and Anr. v. Union of India and Ors.,
( 1969] 2 sec 228, dealing with a government run medical college at pages
232-33, para 9, it was observed as follows:

"It is the Central Government which bears the financial burden of G
running the medical college. It .is for it to lay down the criteria for
eligibility........."

45. In view of the discussion hereinabove, we hold that the decision in
Unni Krishnan's case, insofar as it framed the scheme relating to the grant
of admission and the fixing of the fee, was not correct, and to that extent, the H
650 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A said decision and the consequent directions given to UGC, AICTE, Medical
Council of India, Central arid State governmP.nts, etc., are overruled.

3. IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE
GOVERNM~NT REGULATIONS AND, IF SO, TO WHAT EXTENT?

B 46. We will now examine the nature and extent of the regulations that
can be framed by the State, University or any affiliating body, while granting
recognition or affiliation to a private educational institution.

47. Private educational institutions, both aided and unaided, are
established and administered by religious and linguistic minorities, as well as
C by non-minorities. Such private educational institutions provide education at
three levels, viz., school, college and professional level. It is appropriate to
first deal with . the case of private unaided institutions and private aided
institutions that are not administered by linguistic or religious minorities.
Regulations that can be framed relating to minority institutions will be
D considered while examining the merit and effect of Article 30 of the
Constitution.

Private Unaided Non-Minority Educational Institutions

48. Private education is one of the most dynamic and fastest growing
E segments of post-secondary education at the turn of the twenty-first century.
A combination of unprecedented demand for access to higher education and
the inability or unwillingness of government to provide the necessary support
has brought private higher education to the forefront. Private institutions,
with a long hls~ory in many countries, are expanding in scope and number,
and are becoming increasingly important in parts of the world that relied
F almost entirely on the public sector.

49. Not only has demand overwhelmed the ability of the governments
to provide education, there has also been a significant change in the way that
higher education is perceived. The idea of an academic degree as a "private
oood" that benefits the individual rather than a "public good" for society is
G ~ow widely accepted. The logic of today's economics and an ideology of
privatization have contributed to the resurgence of private higher education,
and the establishing of private institutions where none or very few existed
before.

50. The right to establish and administer broadly comprises of the
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [K!RPAL, CJ.] 651
following rights:- A
(a) to admit students:
l
(b) to set up a reasonable fee stru;::ture:
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
B
(e) to take action if there is dereliction of duty on the part of any
employees

51. A University Education Commission was appointed on 4th
November, 1948, having Dr. S. Radhakrishanan as its Chairman and nine C
other renowned educationists as its members. The terms of reference, inter
alia, included matters relating to means and objects of university education
'
and research in India and maintenance of higher standards of teaching and
examination in universities and colleges under their control. In the report
submitted by this Commission, in paras 29 and 31, it referred to autonomy D
I

\
in education which reads as follows:-

"University Autonomy. - Freedom of individual development is the
basis of democracy. Exclusive control of education by the State has
been an important factor in facilitating the maintenance of totalitarian
tyrannies. In such States institutions of higher learning controlled and E
managed by governmental agencies act like m~rcenaries, promote the
political purposes of th~ State, make them acceptable to an incre.asing
number of their populations and supply them with the weapons they
need. We must resist, in the interests of our own democracy, the trend
towards the governmental domination of the educational process.
F
Higher education is, undoubtedly, an obligation of the State but
State aid is not to be confused with State control over academic
policies and practices. Intellectual progress demands the maintenance
of the spirit of free inquiry. The pursuit and practice of truth regardless
of consequences has been the ambition of universities. Their prayer
is that of the dying Goethe: "More light." or that of Ajax in the mist G
"Light, though I perish in the light.

XXX XXX XXX

The respect in which the universities of Great Britain are held is
due to the freedom from governmental interference which they enjoy H
652 SUPREME COURT REPORTS f2002] SUPP. 3 S.C.R ..

A constitutionally and actually. Our universities should be released from
the control of politics.

Liberal Education. ~ All education is expected to be liberal. It should
free us from the shackles of ignorance, prejudice and unfounded
belief. If we are incapable of achieving the good life, it is due to
B faults in our inward being, to the darkness in us. The process of
education is the slow conquering of this darkness. To lead us from
darkness to light, to free us from every kind of domination except
that of reason, is the aim of education."

52. There cannot be a better exposition than what has been observed
C by these renowned educationists with regard to autonomy in education. The
aforesaid passage clearly shows that the governmental domination of the
educational process must be resisted. Another pithy observation of the
Commission was that state aid was not to be confused with state control over
academic policies and practices. The observations referred to hereinabove
D clearly contemplate educational institutions soaring to great heights in pursuit
of intellectual excellence and being free from unnecessary governmental
controls.

53. With regard to the core components of the rights under Articles 19
and 26(a), it must be held that while the state has the right to prescribe
· E qualifications necessary for admission, private unaided colleges have the
right to admit students of their choice, subject to an objective and rational
procedure of selection and the compliance of conditions, if any, requiring
admission of a small percentage of students belonging to weaker sections of
the society by granting them freeships or scholarships, if not granted by the
Government. Furthermore, in setting up a reasonable fee structure, the element
F of profiteering is not as yet accepted in Indian conditions. The fee structure
must take into consideration the need to generate funds to be utilized for the
betterment and growth of the educational institution, the betterment of
education in that institution and to provide facilities necessary for the benefit
of the students. In any event, a private institution will have the right to
G constitute its own governing body, for which qualifications may be prescribed
by the state or the concerned university. It will, however, be objectionable if
the state retains the power to nominate specific individuals on governing
bodies. Nomination by the state, which could be on a political basis, will be
an inhibiting factor for private enterprise to embark upon the occupation of
establishing and administering educational institutions. For the same reasons,
H nomination of teachers either directly by the department or through a service

......
T.M.A. PAl FOUNDATION v. STATE OFKARNATAKA [KIRPAL, CJ.) 653
commission will be an unreasonable inroad and an unreasonable restriction A
on the autonomy of the private unaided educational institution.

54. The right to establish an educational institution can be regulated;
but such regulatory measures must, in general, be to ensure the maintenance
of proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of mal-administration by those in charge B
of m<inagement. The fixing of a rigid fee structure, dictating the formation
and composition of a governing body, compulsory nomination of teachers
and staff for appointment or nominating students for admissions would be
unacceptable restrictions.

55. The Constitution recognizes the right of the individual or religious C
denomination, or a religious or linguistic minority to establish an educational
institution. If aid or financial assistance is not sought, then such institution
will be a private unaided institution. Although, in Unni Krishnan's case, the
Court emphasized the important role played by private unaided institutions
and the need for private funding, in the scheme. that was framed, restrictions D
were placed on some of the important ingredients relating to the functioning
of an educational institution. There can be no doubt that in seeking affiliation
or recognition, the Board or the university or the affiliating or recognizing
authority can lay down conditions consistent with the requirement to ensure
the excellence of education. It can, for instance, indicate the quality of the
teachers by prescribing the minimum qualifications that they must possess, E
and the courses of study and curricula. It can, for the same reasons, also
stipulate the existence of infrastructure sufficient for its growth, as a pre-
requisite. But the essence of a private educational institution is the autonomy
that the institution must have in its management and administration. There,
necessarily, has to be a difference in the administration of private unaided F
institutions and the government-aided institutions. Whereas in the latter case,
the Government will have greater say in the administration, including
admissions and fixing of fees, in the case of private unaided institutions,
maximum autonomy in the day-to-day administration has to be with the
private unaided institutions. Bureaucratic or governmental interference in the
administration of such an institution will undermine its independence. While G
an educational institution is not a business, in order to examine the degree of
independence that can be given to a recognized educational institution, like
any private entity that does not seek aid or assistance from the Government,
and that exists by virtue of the funds generated by it, including its loans or
borrowings, it is important to note that the essential ingredients of the H
r,._
654 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A management, of the private institution include the recruiting students and
staff, and the quantum of fee that is to be charged.

56. An educational institution is established for the purpose of imparting
education of the type made available by the institution. Different courses of
study are usually taught by teachers who have to be recruited as per
B qualifications that may be prescribed. It is no ~ecret that better working
conditions will attract better teachers. More amenities will ensure that better
students seek admission to that institution: One cannot Jose sight of the fact
that providing good amenities to the students in the fonn of competent teaching ·
faculty and other infrastructure costs money. It has, therefore, to be left to the
C institution, if it chooses not to seek any aid from the government, to determine
the scale of fee that it can charge from the students. One also cannot lose
sight of the fact that we live in a competitive world today, where professional
education is in demand. We have been given to understand that a large
number of professional and other institutions have been started by private
parties who do not seek any governmental aid. In a sense, a prospective
D student has various options open to him/her where, therefore, normally
economic forces have a role to play. The decision on the fee to be charged
must necessarily be left to the private educational institution that does not
seek or is not dependent upon any funds from the government.

57. We, however, wish to emphasize one point, and that is that inasmuch
E as the occupation of education is, in a sense, ·regarded as charitable, the
government can provide regulations that will ensure excellence in education,
while forbidding the charging of capitation fee and profiteering by the
institution. Since the object of setting up an educational institution is by
· definitioll "charitable", it is clear that an educational institution cannot charge
F such a fee as is not required for the purpose of fulfilling that object. To put
it differently, in the establishment of an edu'Cational institution, the object
should not be to make a profit, inasmuch as education is essentially charitable
in nature. There can, however, be a reasonable revenue surplus, which may
be generated by the educational institution for the purpose of development of
education and expansion of the institution.
G
58. For admission into any professional institution, merit must play an
important role. While it may not be nonnally possible to judge the merit of
the applicant who seeks admission into a school, while seeking admission to
. a professional institution and to becorrle a competent professional, it is
necessary that meritorious candidates are not unfairly treated or put at a
H disadvantage by preferences shown to less meritorious but more influential
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, C.J.] 655
applicants. Excellence in professional education would require that greater A
emphasis be laid on the merit of a student seeking admission. Appropriate
regulations for this purpose may be made keeping in view the other
observations made in this judgment in the context of admissions to unaided
institutions.

59. Merit is usually determined, for admission to professional and higher B
education colleges, by either the marks that the student obtains at the qualifying
examination or school leaving certificate stage followed by the interview, or
by a common entrance test conducted by the institution, or in the case of
professional colleges, by government agencies.

60. Education is taught at different levels from primary to professional. C
It is, therefore, obvious that government regulations for all levels or types of
educational institutions cannot be identical; so also, the extent of control or
regulation could be greater vis-a-vis aided institutions.

61. In the case of unaided private schools, maximum autonomy has to D
be with the management with regard to administration, including the right of
appointment, disciplinary powers, admission of students and the fees to be
charged. At the school level, it is not possible to grant admissions on the
basis of merit. It is no secret that the examination r~sults at all levels of
unaided private schools, notwithstanding the stringent regulations of the
governmental authorities, are far superior to the results of the government- E
maintained schools. There is no compulsion on students to attend private
schools. The rush for admission is occasioned by the standards maintained in ··
such schools, and recognition of the fact that state-run schools do not provide
the same standards of education. The State says that it has no funds to
establish institutions at the same level of excellence as private schools. But F
by curtailing the income of such private schools, it disables those schools
from affording the best facilities because of a lack of funds. If this lowering
·of standards from excellence to a level of mediocrity is to be avoided, the
state has to provide the difference which, therefore, brings us back in a
vicious circle to the original problem, viz., the lack of state funds. The solution
would appear to lie in the States not using their scanty resources to prop up G
institutions that are able to otherwise maintain themselves out of the fees
charged, but in improving the facilities and infrastructure of state-run schools
and in subsidizing the fees payable by the students there. [t is in the interest
of the general public that more good quality schools are established; autonomy
and non-regulation of the schoo I administration. in the right of appointment,
admission of the students and the fee to be charged will ensure that more H
656 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A such institutions are established. The fear that if a private school is allowed
to charge fees commensurate with the fees affordable, the degrees would be
"purchasable" is an unfounded. one since the standards of education can be
and are controllable through the regulations relating to recognition, affiliation
and common final examinations.

B 62. There is a need for private enterprise in non-professional college
education as well. At present, insufficient number of undergraduate colleges
are being ·and have been established, one of the inhibiting factors being that
there is a Jack of autonomy due to government regulations. It will not be
wrong to. _presume tha~ the numbers of professional colleges are growing at
C a faster rate than the number of undergraduate and non-professional colleges.
While it. is desirable that there should be a sufficient number of professional
colleges, it should also be possible for private unaided undergraduate colleges
that are non-technical in nature to have maximum autonomy similar to a
school.

D 63. It was submitted that for maintaining the excellence of education,
it w2s important that the teaching faculty and the members of the staff of any
educational institution performed their duties in the manner in which it is
required to be done, according to the rules or instructions. There have been
cases of misconduct having been committed by the teachers and other members
of the staff. The grievance of the institution is that whenever disciplinary
E action i~ sought to be taken in relation to su.::h misconduct, the rules that are
nonnally framed by the government or the university.are clearly loaded against
the Management. It was submitted that in some cases, the rules require the
prior permission of the governmental authorities before the initiation of the
disciplinary proceeding, while in other cases, subsequent permission is required
p before the imposition of penalties in the case of proven misconduct. While
emphasizing the need for an independent authority to adjudicate upon the
grievance of the employee or the Management in the event of some punishment
being imposed, it was submitted that there should be no role for the government
or the university to play in relation to the imposition of any penalty on the
employee.
G
64. An educational institution is established only for the purpose of
imparting education to the students. In such an institution, it is necessary for
all to maintain discipline and abide by the rules and regulations that have
been lawfully framed. The teachers are like foster-parents who are required
H to look after, cultivate and guide the students in their pursuit of education.
TM.A. PAl FOUNDATION v. STATEOFKARNATAKA (KIRPAL, CJ.J 657
The teachers and the institution exist for the students and not vice versa. A
Once this principle is kept in mind, it must follow that it becomes imperative
for the teaching and other staff of an educational institution to perform their
duties properly, and for the benefit of the students. Where allegations of
misconduct are made, it is imperative that a disciplinary enquiry is conducted,
and that a decision is taken. In the case of a private institution, the relationship B
between the Management and the employees is contractual in nature. A teacher,
if the contract so provides, can be proceeded against, and appropriate
disciplinary action can be taken if the misconduct of the teacher is proved.
Considering the nature of the duties and keeping the principle of natural
justice in mind for the purposes of establishing misconduct and taking action
thereon, it is imperative that a fair domestic enquiry is conducted. It is only C
on the basis of the result of the disciplinary enquiry that the management will
be entitled to take appropriate action. We see no reason why the Management
of a private unaided educational institution should seek the consent or approval
of any governmental authority before taking any such action. In the ordinary
relationship of master and servant, governed by the terms of a contract of
employment, anyone who is guilty of breach of the terms can be proceeded D
against and appropriate relief can be sought. Normally, the aggrieved party
would approach a court of law and seek redress. ln the case of educational
institutions, however, we are of the opinion that requiring a teacher or a
member of the staff to go to a civil court for the purpose of seeking redress
is not in the interest of general education. Disputes between the management E
and the staff of educational institutions must be decided speedily, and without
the excessive incurring of costs. It would, therefore, be appropriate that an
educational Tribunal be set up in each district in a State, to enable the aggrieved
teacher to file an appeal, unless there already exists such an educational
tribunal in a State - the object being that the teacher should not suffer through
the substantial costs that arise because of the location of the tribunal; if the F
tribunals are limited in number, they can hold circuit/camp sittings in different
districts to achieve this objective. Till a specialized tribunal is set up, the
right of filing the appeal would lie before the District Judge or Additional
District Judge as notified by the government. It wilt not be necessary for the
institution to get prior permission or ex post facto approval of a governmental G
authority while taking disciplinary action against a teacher or any other
employee. The State government shall determine, in consultation with the
High Court, the judicial forum in which an aggrieved teacher can file an
appeal against the decision of the Management concerning disciplinary action
or termination of service.
658 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 65. The. reputation of an educational institution is established by the
quality of its! faculty and students, and the educational and other facilities that
the college.has to offer. The private educational institutions have a personality
of their own, and in order to maintain their atmosphere and traditions, it is
but necessary that they must have the right to choose and select the stud'ents
who can be. admitted to their courses of studies.- It is for this reason that in
B the St. Stephen's College case, this Court upheld the scheme whereby a cut-
off percentage was fixed for admission, after which the students were
interviewed and thereafter selected. While an educational institution cannot
grant admission on its whims and fancies, and must follow some identifiable
or reasonable methodology of admitting the students, any scheme, rule or
C regulation that does not give the institution the right to reject candidates who
might otherwise be qualified according to, say, their p((rfonnance in an entrance
test, would be an unreasonable restriction under Article 19(6), though
appropriate guidelines/modalities can be prescribed for holding the entrance
test in a fair manner. Even when students are required to be selected on the
basis of merit, the ultimate decision to grant admission to the students who
D have othe~ise qualified for the grant of admission must be left with the
educational institution concerned. However, when th·~ institution rejects such
students, such rejection must not be whimsical or for extraneous reasons.

66. ·In the case of private unaided educational institutions, the authority
E granting recognition or affiliation can certainly lay down conditions for the
grant of recognition or affiliation; these conditions must pertain broadly to '
academic and educational matters and welfare of students and teachers • but
how the private unaided institutions are to run is a matter of administration
to be taken care of by the Management of those institutions.

F Private Unaided Professional Colleges
6?., We now come to the regulations that can be framed relating to
private unaided professional institutions.

68: It would be unfair to apply the same rules and regulations regulating
G admission to both aided and unaided professional institutions. It must be
borne in mind that unaided professional institutions are entitled to autonomy
in their administration while, at the same time, they do not forgo or discard
the prindiple of merit. It would, therefore, be permissible for the university
or the government, at the time of granting recognition, to require a private
H unaided institution to provide for merit-based selection while, at the same

I I
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KlRPAL, CJ.] 659
time, giving the Management sufficient discretion in admitting students. This A
can be done through various methods. For instance, a certain percentage of
the seats can be reserved for admission by the Management out of those
students who have passed the common entrance test held by itself or by the
State/University and have applied to the college concerned for admission,
while the rest of the seats may be tilled up on the basis of counselling by the B
state agency. This will incidentally take care of poorer and backward sections
of the society. The prescription of percentage for this purpose has to be done
by the government according to the local needs and different percentages can
be fixed for minority unaided and· non-minority unaided and professional
colleges. The same principles may be applied to other non-professional but
unaided educational institutions viz., graduation and post graduation non- C
professional colleges or institutes.

69. In such professional unaided institutions, the Management will have
the right to select teachers as per the qualifications and eligibility conditions
laid down by the State/University subject to adoption of a rational procedure
of selection. A rational fee structure should be adopted by the Management, D
which would not be entitled to charge a capitation fee. Appropriate machinery
can be devist!d by the state or university to ensure that no capitation fee is
charged and that there is no profiteering, though a reasonable surplus for the
furtherance of education is permissible. Conditions granting recognition or
affiliation can broadly cover academic and educational matters including the E
welfare of students and teachers.

70. It is well established all over the world that those who seek
professional education must pay for it. The number of seats available in
government and government-aided colleges is very small, compared to the
number of persons seeking admission to the medical and engineering colleges. F
All those eligible and deserving candidates who could not be accommodated
in government colleges would stand deprived of professional education. This
void in the field of medical and technical education has been filled by
institutions that are established in different places with the aid of donations
and the active part taken by public-minded individuals. The object of
establishing an institution has thus been to provide technical or professional G
education to the deserving candidates, and is not necessarily a commercial
venture. In order that this intention is meaningful, the institution must be
recognized. At the school level, the recognition or affiliation has to be sought
from the educational authority or the body that conducts the school-leaving
examination. It is only on the basis of that examination that a school-leaving H
660 .SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A certificate is granted, which enables a student to seek admission in further
courses of study after school. A college or a professional educational institution
has to get recognition from the concerned university, which normally requires
certain conditions to be fulfilled before recognition. It has been held that
conditions of affiliation or recognition, which pertain to the academic and
B educational character of the institution and ensure uniformity, efficiency and
excellence in educational courses are valid, and that they do not violate even
the provisions of Article 30 of the Constitution; but conditions that are laid
down for granting recognition should not be such as may lead to governmental
control of the administration of the private educational institutions.

Private' Aided Professional institutions (non-minority)
c
71. While giving aid to professional institutions, it would be permissible
for the authority giving aid to prescribe by rules or regulations, the conditions
on the basi.s of which admission will be granted to different aided col1eges
by virtue of merit, coupled with the reservation policy of the state. The merit
D 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
devise other means to ensure that admission is granted to an aided professional
institution on the basis of merit. ln the case of such institutions, it will be
E permissible for the government or the university to provide that consideration
should be shown to the weaker sections of the society.

72. Once aid is granted to a private professional educational institution,
the government or the state agency, as a condition of the grant of aid, can put
fetters on the freedom in the matter of administration and management of the
F institution. The state, which gives aid to an educational institution, can impose
such conditions as are necessary for the proper maintenance of the high
standards' of education as the financial burden is shared by the state. The state
would also be under an obligation to protect the interest of the teaching and
non-teaching staff. In many states, there are various statutory provisions to
G regulate the functioning of such educational institutions where the States
give, as a grant or aid, a substantial proportion of the revenue expenditure
including salary, pay and allowances of teaching and non-teaching staff. It
would be its responsibility to ensure that the teachers working in those
institutions are governed by proper service conditions. The state, in the case
of such aided institutions, has ample power to regulate the method of selection
H and appointment of teachers after prescribing requisite qualifications for the

I I
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.} 661

same. Ever since In Re The Kerala Education Bill, 1957 [1959] SCR 995, A
this Court has upheld, in the case of aided institutions, those regulations that
served the interests of students and teachers. Checks on the administration
may be necessary in order to ensure that the administration is efficient and
sound and will serve the academic needs of the institutions. In other words,
rules and regulations that promote good administration and prevent mal-
administration can be formulated so as to promote the efficiency of teachers, B
discipline and fairness in administration and to preserve harmony among
affiliated institutions. At the same time it has to be ensured that even an aided
institution does not become a government-owned and contro11ed institution.
Normally, the aid that is granted is relatable to the pay and allowances of the
teaching staff. In addition, the Management of the private aided institutions C
has to incur revenue and capital expenses. Such aided institutions cannot
obtain that extent of autonomy in relation to management and administration
as would be available to a private unaided institution, but at the same time,
it cannot also be treated as an educational institution departmentally run by
government or as a wholly owned and controlled government institution and
interfere with Constitution of the governing bodies or thrusting the staff D
-' without reference to Management.
Other Aided Institutions

73. There are a large number of educational institutions, like schools
and non-professional colleges, which cannot operate without the support of E
aid from the state. Although these institutions may have been established by
philanthropists or other public-spirited persons, it becomes necessary, in order
to provide inexpensive education to the students, to seek aid from the state.
In such cases, as those of the professional aided institutions referred to
hereinabove, the Government would be entitled to make regulations relating F
to the terms and conditions of employment of the teaching and non-teaching
staff whenever the aid for the posts is given by the State as well as admission
procedures. Such rules and regulations can also provide for the reasons and
the manner in which a teacher or any other member of the staff can be
removed. In other words, the autonomy of a private aided institution would
be less than that of an unaided institution. G
4. IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR
UNGUISTIC MINORITY IN RELATION TO ARTICLE 30, WHAT IS
TO BE THE UNIT- THE STATE OR THE COUNTRY AS A WHOLE?

74. We now consider the question of the unit for the purpose of H
\

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

A detennining the definition of "minority" within the meaning of Article 30( 1).
75. Article 30(1) deals with religious minorities and linguistic minorities.
The opening words of Article 30(1) make it clear that religious and linguistic
minorities have been put at par, ·insofar as that Article is concerned. Therefore,
whatever the unit - whether a state or the whole of India - for determining
B a linguistic minority, it would be the same in relation to a religious minority.
India is divided into different linguistic states. The states have been carved
out on the basis of the language of the majority of persons of that region. For
example, Andhra Pradesh was established on the basis of the language of that
region, viz., Telugu. "Linguistic minority" can, therefore, logically only be in
C relation to a particular State. If the determination of "linguistic minority" for
the purpose of Article 30 is to be in relation to the whole oflndia, then within
the State of Andhra Pradesh, Telugu speakers will have to be regarded as a
"linguistic minority". This will clearly be contrary to the concept of linguistic
states.

D 76. If, therefore, the state has to be regarded as the unit for determining
"linguistic minority" vis-a-vis Article 30, then with "religious minority" being
on the same footing, it is the state in relation to which the majority or
minority status will have to be determined.

77. In the Kerala Education Bill case, the question as to whether the
E minority community was to be determined on the basis of the entire population
of India, or on the basis of the population of the State forming a part of the
Union was posed at page 1047. It had been contended by the State of Kerala
that for claiming the status of minority, the persons must numerically be a
minority in the particular region in which the educational institution was
F situated;· and that the locality or ward or town where the institution was to be
situated had to be taken as the unit to determine the minority community. No
final opinion on this question was expressed, but it was observed at page
1050 that as the Kerala Education Bill "extends to the whole of the State of
Kerala and consequently the minority must be determined by reference to the
entire population of that State. "
G
78. In two cases· pertaining to the DA V College, this Court had to
consider whether the Hindus were a religious minority in the State of Punjab.
In D.A. V. College v. State of Punjab and Ors., [1971] (Supp.) SCR 688, the
question posed was as to what constituted a religious or linguistic minority,
and how it was to be determined. After examining the opinion of this Court
H in the Kerala Education .Bill case, the Court held that the Arya Samajis, who
T. MA PAI FOUNDATION v. STATE OF KARNA TAKA [KfRPAL, CJ .] 663

were Hindus, were a religious minority in the State of Punjab, even though A
they may not have been so in relation to the entire country. In another case,
D.A.V. College Bhatinda v. State of Punjab and Ors., [1971] (Supp.) SCR
677, the observations in the first D.A.V. College case were explained, and at
page 681, it was stated that ''what constitutes a linguistic or religious minority
must be judged in relation to the State inasmuch as the impugned Act was B
a State Act and not in relation to the whole of India. " The Supreme Court
rejected the contention that since Hindus were a majority in India, they could
not be a religious minority in the state of Punjab, as it took the state as the
unit to determine whether the Hindus were a minority community.

79. There can, therefore, be little doubtthat this Court has consistently C
held that, with regard to a state law, the unit to determine a religious or
· linguistic minority can only be the state.

80. The Forty-Second Amendment to the Constitution included
education in the Concurrent List under Entry 25. Would this in any way
change the position with regard to the determination of a "religious" or D
"linguistic minority" for the purposes of A11icle 30?

81. As a result of the insertion of Entry 25 into List III~ Parliament can
now legislate in relation to education, which was only a state subject
previously. The jurisdiction of the Parliament is to make laws for the whole
or a part of India. It is well recognized that geographical classification is not E
violative of Article 14. It would, therefore, be possible that, with respect to
a particular State or group of States, Parliament may legislate in relation to
education. However, Article 30 gives the right to a linguistic or religious
minority of a State to establish and administer educational institutions of
their choice. The minority for the purpose of Article 30 cannot have different F
meanings depending upon who is legislating. Language being the basis for-
the establishment of different states for the purposes of Article 30, a "linguistic
minority" will have to be determined in relation to the state in which the
educational institution is sought to be established. The position with regard
to the religious minority is similar, since both religious and linguistic minorities
have been put at par in Article 30: G
5. TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE
MINORITY INSTITUTIONS TO ADMINISTER BE REGULATED?

82. Article 25 gives to all persons the freedom of conscience and the
right to freely profess, practice and propagate religion. This right, however, . H
664 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R

A is not abSolute. The opening words of Article 25( 1) make this right subjeer
to pub Iic order, morality and health, and also to the other provisions of Part .
III of the Constitution. This would mean that the right given to a person
under 25(1) can be curtailed or regulated if the exercise of that right would
violate other provisions of Part Ill of the Constitution, or if the exercise
B thereof is not in consonance with public order, morality and health. The
general law made by the government contains provisions relating to public
order, morality and health; these would have to be complied with, and cannot
be violated by any person in exercise of his freedom of conscience or his
freedom to profess, practice and propagate religion. For example, a person
cannot propagate his.religion in such a manner as to denigrate another religion
C or bring about dissatisfaction amongst people.

83. Article 25(2) gives specific power to the state to make any law
regulating or restricting any economic, financial, political or other secula~
activity, which may be associated with religious practice as provided by sub-:
clause (a) of Article 25(2). This is a further curtailment of the right to profess,
D practice and propagate religion conferred on the persons under Article 25( I)'.'·
Article 25(2)(a) covers only a limited area associated with religious practice,
in respect of which a law can be made. A careful reading of Article 25(2)(a)
indicates that it does not prevent the State from making any Jaw in relation
to the religious practice as such. The limited jurisdiction granted by Article
E 25(2) relates to the making of a law in relation to economic, financial, political
or other secular activities associated with the religious practice. •

84. The freedom to manage religious affairs is provided by Article 26.
This Article gives the right to every religious denomination, or any section
thereof, to exercise the rights that it stipulates. However, this right has to be
p exercised in a manner that is in conformity with public order, morality and
health. Clause (a) of Article 26 gives a religious denomination the right to
establish and maintain institutions for religious and charitable purposes. There
is no dispute that the establishment of an educational institution comes within
the meaning of the expression "charitable purpose". Therefore, while Ar1icl~
25( 1) grants the freedom of conscience and the right to profess, practice and .
G propagate religion, Article 26 can be said to be complementary to it, and ·
provides for every religious denomination, or any section thereof, to exercise
the rights mentioned therein. This is because Article 26 does not deal with
the right of an individual, but is confined to a religious denomination. Article
26 refers to a denomination of any religion, whether it is a majority or a
H minority religion, just as Article 25 refers to all persons, whether they belong
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.J 665

to the majority or a minority religion. Article 26 gives the right to majority A
religious denominations, as well as to minority religious denominations, to
exercise the rights contained therein.

85. Secularism being one of the important basic features of our
Constitution, Article 27 provides that no person shall be compelled to pay
any taxes, the proceeds of which are specifically appropriated for the payment B
of expenses for the promotion and maintenance of any particular religion or
religious denomination. The manner in which the Article has been framed
does not prohibit the state from enacting a law to incur expenses for the
promotion or maintenance of any particular religion or religious denomination,
but specifies that by that law, no person can be compelled to pay any tax, the C
proceeds of which are to be so utilized. In other words, if there is a tax for
the promotion or maintenance of any particular religion or religious
denomination, no person can be compelled to pay any such tax.

86. Article 28(1) prohibits any educational institution, which is wholly
maintained out of state funds, to provide for religious instruction. Moral D
education dissociated from any denominational doctrine is not prohibited;
but, as the state is intended to be secular, an educational institution wholly
maintained out of state funds cannot impart or provide for any religious
instruction.

87. The exception to Article 28(1) is contained in Article 28(2). Article E
28(2) deals with cases where, by an endowment or trust, an institution is
established, and the terms of the endowment or the trust require the imparting
of religious instruction, and where that institution is administered by the
state. In such a case, the prohibition contained in Article 28(1) does not
. apply. If the administration of such an institution is voluntarily given to the F
government, or the government, for a good reason and in accordance with
law, assumes or takes over the management of that institution, say on account
of mal-administration, then the government, on assuming the administration
ofthe institution, would be obliged to continue with the imparting of religious
instruction as provided by the endowment or the trust.
G
88. While Article 28( 1) and Article 28(2) relate to institutions that are
wholly maintained out of state funds, Article 28(3) deals with an educational
institution that is recognized by the state or receives aid out of state funds.
Article 28(3) gives the person attending any educational institution the right
. not to take part in any religious instruction, which may be imparted by an
Institution recognized by the state, or receiving aid from the state. Such a H
666 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A person also has the right not to attend any religious worship that may be
conducted in such an institution, or in any premises attached thereto, unless
such a person, or if he/she is a minor, his/her guardian, has given his/her
consent. The reading of Article 28(3) clearly shows that no person attending
an educational institution can be required to take part in any religious
B instruction or any religious worship, unless the person or his/her guardian has
given his/her consent thereto, in a case where the educational institution has
been recognized by the state or receives aid out of its funds. We have seen
that Article 26(a) gives the religious denomination the right to establish an
educational institution, the religious denomination being either of the majority
community or minority community. In any institution, whether established
C by the majority or a minority religion, if religious instruction is imparted, no
student can be compelled to take part in the said religious instruction or in
any religious worship. An individual has the absolute right not to be compelled
to take part in any religious instruction or worship. Article 28(3) thereby
recognizes the right of an individual to practice or profess his own religion.
In other words, in matters relating to religious instruction or worship, there
D can· be no compulsion where the educational institution is either recognized
by the state or receives aid from the state.

89. Articles 29 and 30 are a group of articles relating to cultural and
educational rights. Article 29(1) gives the right to any section of the citizens
E residing in India or any part thereof, and having a distinct language, script
or culture of its own, to conserve the same. Article 29( 1) does not refer to
any religion, even though the marginal note of the Article mentions the
interests of minorities. Article 29( 1) essentially refers to sections of citizens
who have a distinct language, script or culture, even though their religion
may not be the same. The common thread that runs through Artie le 29( 1) is
F language, script or culture, and not religion. For example, if in any part of
the country, there is a section of society that has a distinct language, they are
entitled to conserve the same, even though the persons having that language
may profess different religions. Article 29(1) gives the right to all sections of
citizens, whether they are in a minority or the majority religions, to conserve
G their language, script or culture.
90. In the exercise of this right to conserve the language, script or
culture, that section of the society can set up educational institutions. The
right to establish and maintain educational institutions of its choice is a
necessary concomitant to the right conferred by Article 30. The right under
H Article 30 is not absolute. Article 29(2) provides that, where any educational -
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 667
institution is maintained by the state or receives aid out of state funds, no A
citizen shall be denied admission on the grounds only of religion, race, caste,
language or any of them. The use of the expression "any educational
institution" in Article 29(2) would refer to any educational institution
established by anyone, but which is maintained by the state or receives aid
out of state funds. In other words, on a plain reading, state-maintained or
aided educational institutions, whether established by the Government or the B
majority or a minority community cannot deny admission to a citizen on the
grounds only of religion, race, caste or language.

91. The right of the minorities to establish and administer educational
institutions is provided for by Article 30(1). To some extent, Article 26(1)(a) C
and Article 30( I) overlap, insofar as they relate to the establishment of
educational institutions; but whereas Article 26 gives the right both to the
majority as well as minority communities to establish and maintain institutions
for charitable purposes, which would, inter alia, include educational
institutions, Article 30(1) refers to the right of minorities to establish and
maintain educational institutions of their choice. Another difference between D
Article 26 and Article 30 is that whereas Article 26 refers only to religious
denominations, Article 30 contains the right of religious as well as linguistic
minorities to establish and administer educational institutions of their choice.

92. Article 30( I) bestows on the minorities, whether based on religion
or language, the right to establish and administer educational institution of E
their choice. Unlike Articles 25 and 26, Article 30(1) does not specifically
state 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. F

93. Can Article 30(1) be so read as to mean that it contains an absolute
right of the minorities, whether based on religion or language, to establish
and administer educational institutions in any manner they desire, and without
being obliged to comply with the provisions of any law? Does Article 30( 1)
give the religious or linguistic minorities a right to establish an educational G
institution that propagates religious or racial bigotry or ill will amongst the
people? Can the right under Article 30(1) be so exercised that it is opposed
to public morality or health? In the exercise of its right, would the minority
while establishing educational institutions not be bound by town planning
rules and regulations? Can they construct and maintain buildings in any H
668 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A manner they desire without complying with the provisions of the building by-
laws or health regulations?

94. In order to interpret Article 30 and its interplay, if any, with Article
29, our attention was drawn to the Constituent Assembly Debates. While
referring to them, the learned Solicitor General submitted that the provisions
B of Article 29(2) were intended to be applicable to minority institutions seeking
protection of Article 30. He argued that if any educational institution sought
aid, it could not deny admission only on the ground of religion, race, caste
or language and, consequently, giving a preference to the minority over more
meritorious non-minority students was impermissible. [t is now necessary to
C refer to some of the decisions of this Court insofar as they interpret Articles
29 and 30, and to examine whether any creases therein need ironing out.

95. In The State ofMadras v. Srimathi Champakam Dorairajan, [1951]
SCR 525, the State had issued an order, which provided that admission to
students to engineering and medical colleges in the State should be decided
D by the Selection Committee, strictly on the basis of the number of seats fixed
for different communities. While considering the validity of this order, this
Court interpreted Article 29(2) and held that if admission was refused only
on the grounds of religion, race, caste, language or any of them, then there
was a clear breach of the fundamental right under Article 29(2). The s~id
order was construed as being violative of Article 29(2), because students who
E did not fall in the particular categories were to be denied admission. In this
connection it was observed as follows:

" .... so far as those seats are concerned, the petitioners are denied
admission into any of them, not on any ground other than the sole
ground of their being Brahmins and not being members of the
F community for whom those reservations were made ......"

96. This government order was held to be violative of the Constitution
and constitutive of a clear breach of Article 29(2). Article 30 did not come
up for consideration in that case.
G 97. In The State of Bombay v. Bombay Education Society and Ors.,
[1955] 1 SCR 568, the State had issued a circular, the operative portion of
which directed that no primary or secondary school could, from the date of
that circular admit to a class where English was used as a medium . of
instruction, any pupil other than pupils belonging to a section of citizens, the
H language of whom was English, viz., Anglo-Indians and citizens of non-
T.M.A. PAl FOUNDATION r. STATE OF KARNATAKA [KIRPAL, CJ.] 669

Asiatic descent. The validity of the circular was challenged while admission A
was refused, inter alia, to a member of the Gujarati Hindu Community. A
number of writ petitions were filed and the High Court allowed them. In an
application filed by the State of Bombay, this Court had to consider whether
the said circular was ultra vires Article 29(2). In deciding this question, the
Court analyzed the provisions of Articles 29(2) and 30, and repelled the
contention that Artie)~ 29(2) guaranteed the right only to the citizens of the B
minority group. It was observed, in this connection, at page 579, as follows:

" ......The language of Article 29(2) is wide and unqualified and may
well cover all citizens whether they belong to the majority or minority
group. Article 15 protects all citizens against the State whereas the C
protection of Article 29(2) extends against the State or anybody who
denies the right conferred by it. Further Article 15 protects all citizens
against discrimination generally but Article 29(2) is a protection against
a particular species of wrong namely denial of admission into
educational institutions of the specified kind. In the next place Article
15 is quite general and wide in its terms and applies to all citizens, D
whether they belong to the majority or minority groups, and gives
protection to all the citizens against discrimination by the State on
certain specific grounds. Article 29(2) confers a special right on citizens
for admission into educational institutions maintained or aided by the
State. To limit this right only to citizens belonging to minority groups E
will be to provide a double protection for such citizens and to hold
that the citizens of the majority group have no special educational
rights in the nature of a right to be admitted into an educational
institution for the maintenance of which they make contributions by
way of taxes. We see no cogent reason for such discrimination. The
heading under which Articles 29 and 30 are grouped together- namely F
"Cultural and Educational Rights"- is quite general and does not in
tenns contemplate such differentiation. If the fact that the institution
is maint?.ined or aided out of State funds is the basis of this guaranteed
right then all citizens, irrespective of whether they belong to the
majority or minority groups; are alike entitled to the protection of this G
fun damental right.. ....."

98. It is clear from the aforesaid discussion that this Court came to the
conclusion that in the case of minority educational institutions to which
protection was available under Article 30, the provisions of Article 29(2)
were indeed applicable. But, it may be seen that the question in the present H
670 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

form i.e., whether in the matter of admissions into aided minority educational
institutions, minority students could be preferred to a reasonable extent,
keeping in view the special protection given under Article 30(1 ), did not arise
for consideration in that case.

99. In the Kerala Education Bill case, this Court again had the occasion
B to consider the interplay of Articles 29 and 30 of the Constitution. This case
was a reference ulJder Article 143( 1) of the Constitution made by the President
-
r

of India to obtain the opinion of this Court on certain questions relating to
the constitutional validity of some of the provisions of the Kerala Education
Bill, 1957, which had been passed by the Kerala Legislative Assembly, but
C had been reserved by the Governor for the consideration of the President.
Clause -3(5) of the Bill, made the recognition of new schools subject to the
other provisions of the Bill and the rules framed by the Government under
clause (36); clause (15) authorized the Government to acquire any category
of schools; clause 8(3) made it obligatory on all aided schools to hand over
the fees to the Government; clauses 9 to 13 made provisions for the regulation
D and management of the schools, payment of salaries to teachers and the terms
and conditions of their appointment, and clause (3 3) forbade the granting of
temporary injunctions and interim orders in restraint of proceedings under
the Act.

100. With reference to Article 7.9(2), the Court observed at page I 055,
E while dealing with an argument based on Article 337 that "likewise Article
29(2) provides, inter alia, that no citizen shall be denied admission into any
educat_ional institution receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them". Referring to Part Ill of the
Constitution and to Articles 19 and 25 to 28 in particular, the Court said:-
F " ..... Under Article 25 all persons are equally entitled, subject to public
, order, morality and health and to the other provisions of Part IH, to
freedom of conscience and the right freely to profess, practise and
propagate religion. Article 26 confers the fundamental right to every
religious denomination or any section thereof, subject to public order,
G morality and health, to establish and maintain institutions for religious
and charitable purposes, to manage its own affairs in matters of
religion, to acquire property and to administer such property in
accordance with Jaw. The ideal being to constitute India into a secular
State, no religious instruction is, under Article 28(1 ), to be provided
:in any educational institution wholly maintained out of State funds
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL , CJ.] 671

and under clause (3) of the same Article no person attending any A
educational institution recognized by the State or receiving aid out of
. State funds is to be required to 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 B
guardian has given his consent thereto. Article 29( 1) confers on any
section of the citizeriS having a distinct language, script or culture of
its own to have the right of conserving the same. Clause (2) of that
Article provides that no citizen sh::tll 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 C
of them."

l 01. Dealing with Articles 29 and 30 at page 1046, it was observed as
follows:-

"Articles 29 and 30 are set out in Part III of our Constitution which D
guarantees our fundamental rights. They are grouped together under
the sub-head "Cultural and Educational Rights". The text and the
marginal notes of both the Articles show that their purpose is to
confer those fundamental rights on certain sections of the community
which constitute minority communities. Under clause ( l) of Article
29 any section of the citizens residing in the territory of India or any E
part thereof having a distinct language, script or culture of its own
has the right to conserve the same. It is obvious that a minority
community can effectively conserve its language, script or culture by
and through educational institutions and, therefore, the right to establish
and maintain educational in~titutions of its choice is a necessary F
concomitant to the right to conserve its distinctive language, script or
culture and that is what is conferred on all minorities by Article 30(1)
which has hereinbefore been quoted in full. This right, however, is
subject to clause 2 or Article 29 which provides that no citizen shall
be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of G
religion, race, caste, language or any of them."

102. It had been, inter alia, contended on behalf of the state that if a
single member of any other community is admitted in a school established
for a particular minority community, then the educational institution would
cease to be an educational institution established by that particular minority H
672 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A community. It was contended that because of Article 29(2), when an
educational institution established by a minority community gets aid, it would
be precluded from denying admission to members of other communities
because of Article 29(2), and that as a consequence thereof, it would cease
to be an educational institution of the choice of the minority community that
B established it. Repelling this argument, it was observed at pages 1051-52, as
follows:-

" .. :...This argument does not appear to us to be warranted by the
language of the Article itself. There is no such limitation in Article
30( 1) and to accept this limitation will necessarily involve the addition
of, the words "for their own community" in the Article whirh is
c ordinarily not permissible according to well established rules of
interpretation. Nor is it reasonable to assume that the purpose of
Article 29(2) was to deprive minority educational institutions of the
aid they receive from the State. To say that an institution which
receives aid on account of its being minority educational institution
D must not refuse to admit any member of any other commurlity only
on the grounds therein mentioned and then to say that as soon as such
institution admits such an outsider it will cease to be a minority
institution is tantamount to saying that minority institutions will not,
as minority institutions, be entitled to any aid. The real import of
Article 29(2) and Article 30( t) seems to us to be that they clearly
E contemplate a minority institution with a sprinkling of outsiders
admitted into it. By admitting a non-member into it the minority
institution does not shed its character and cease to be a minority
institution. Indeed the object of conservation of the distinct language,
script and culture of a minority may be better served by propagating
F the same amongst non-members of the particular minority community.
In· our opinion, it is not possible to read this condition into Article
30( 1) of the Constitution."

t 03. It will be seen that the use of the expression "sprinkling of outsiders"
in that case clearly implied the applicability of Article 29(2) to Article 30( I);
G the Court held that when a minority educational institution received aid,
outsiders would have to be admitted. This part of the state's contention was
accepted, but what was rejected was the contention that by taking outsiders,
a minority institution would cease to be an educational institution of the
choice of the minority community that established it. The Court concluded at
H page I06~, as follows:-
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KlRPAL, CJ.) 673
" .... We have already observed that Article 30( l) gives two rights to A
the minorities, (l) to establish and (2) to administer, educational
institutions of their choice. The right to administer cannot obviously
include the right to maladminister. The minority cannot surely ask for
aid or recognition for an educational institution run by them in
unhealthy surroundings, without any competent teachers, possessing B
any semblance of qualification, and which does not maintain even a
fair standard of teaching br which teaches matters subversive of the
welfare of the scholars. It stands to reason, then, that the constitutional
right to administer an educational institution of their choice does not
necessarily militate against the claim of the State to insist that in
order to grant aid the State may prescribe reasonable regulations to C
ensure the excellence of the institutions to be aided ....."

104. While noting that Article 30 referred not only to religious minorities
but also to linguistic minorities, it was held that the Article gave those
minorities the right to establish educational institutions of their choice, and
that no limitation could be placed on the subjects to be taught at such D
educational institutions and that general secular education is also comprehended
within the scope of Article 30(1). It is to be noted that the argument addressed
and answered in that case was whether a minority aided institution loses its
character as such by admitting non-minority students in terms of Article
29(2). It was observed that the admission of 'sprinkling of outsiders' will not E
deprive the institution of its minority status. The opinion expressed therein
does not really go counter to the ultimate view taken by us in regard to the
inter~play of Articles 30( 1) and 29(2)

105. In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr.,
[1963] 3 SCR 837, this Court had to consider the validity of an order issued p
by the Government of Bombay whereby from the academic year 1955~56,
80% of the seats in the training colleges for teachers in non-government
training colleges were to be reserved for the teachers nominated by the
Government. The petitioners, who belonged to the minority community, were,
inter alia, running a training college for teachers, as also primary schools.
The said primary schools and college were conducted for the benefit of the G
religious denomination of the United Church of Northern India and Indian
Christians generally, though admission was not denied to students belonging
to other communities. The petitioners challenged the government order
requiring 80% of the seats to be filled by nominees of the government, inter
alia, on the ground that the petitioners were members of a religious H
674 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A denomination and that they constituted a religious minority, and that the
educational institutions had been established primarily for the benefit of the
Christian community. It was the case of the petitioners that the decision of
the Government violated their fundamental rights guaranteed by Articles 30( 1),
26(a), (b), (c) and (d), and 19(1)(t) and (g). While interpreting Article 30, it
B was observed by this Court at pages 849-850 as under:-
" ....All minorities, linguistic or religious have by Article 30(1) an
absolute right to establish and administer educational institutions of
their choice; and any Jaw or executive direction which seeks to infringe
t~e substance of that right under Article 30( 1) would to that extent be
,void. This, however, is not to say that it is not open to the State to
c impose regulations upon the exercise of this right. The fundamental
freedom is to establish and to administer educational institutions, it is
a right to establish and administer what are in truth educational
institutions, institutions which cater to the educational needs of the
,citizens, or sections thereof. Regulation made in the true interests of
D efficiency of instruction, discipline, health, sanitation, morality, public
o,rder and the like may undoubtedly ·be imposed. Such regulations are
not restrictions on the substance of the right which is guaranteed,
they secure the proper functioning· of the institution, in matters
educational."

E 106. While coming to the conclusion that the right of the private training
colleges .to admit students of their choice was severely restricted, this Court
referred 'to the opinion in the Kerala Education Bill case, but distinguished
it by observing that the Court did not, in that case, lay down any test of
reasonableness of the regulation. No general principle on which the
F reasonableness of a regulation may be tested was sought to be laid down in
the Kerala Education Bill case and, therefore, it was held in Sidhajbhai
Sabhai 's case that the opinion in that case was not an authority for the
proposition that all regulative measures, which were not destructive or
annihilative of the character of the institution established by the minority,
provided the regulations were in the national or public interest, were valid.
G In this connection it was further held at page 856, as follows:-

"The right established by Article 30 (1) is a fundamental right declared
· in terms absolute. Unlike the fundamental freedoms guaranteed by
Article 19, it is not subject to reasonable restrictions. It is intended to
• be a real right for the protection of the minorities in the .matter of
H setting up of educational institutions of their own choice. The right
T.M.A. PAl FOUNDATIONv. STATE OF KARNATAKA [KIRPAL, CJ.] 675

is intended to be effective and is not to be whittled down by so-called A
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 B
as an educational institution, the right guaranteed by Article 30 ( 1)
will be but a "teasing illusion'\ a promise of unreality. Regulations
which may lawfully be imposed either by legislative or executive
action as a condition of receiving grant or of recognition mus~ be
directed to making the institution while retaining its character as a
minority institution effective as an educational institution. Such C
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."
D
l 07. The aforesaid decision does indicate that the right under Article
30( 1) is not so absolute as to prevent the government from making any
regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai 's
case, it was laid down that regulations made in the true interests of efficiency
of instruction, discipline, health, sanitation, morality and public order could E
be imposed. If this is so, it is difficult to appreciate how the government can
be prevented from framing regulations that are in the national interest, as it
seems to be indicated in the passage quoted hereinabove. Any regulation
framed in the national interest must necessarily apply to all educational
institutions, whether run by the majority or the minority. Such a limitation
must necessarily be read into Article 30. The right under Article 30(1) cannot F
be such as to override the national interest or to prevent the government from
framing regulations in that behalf. It is, of course, true that government
regulations cannot destroy the minority character of the institution or make
the right to establish and administer a mere illusion; but the right under
Article 30 is not so absolute as to be above the law. It will further be seen
that in Sidhajbhai Sabhai 's case, no reference was made ~o Article 29(2) of G
the Constitution. This decision, therefore, cannot be an authority for the
proposition canvassed before us.

108. Our attention was invited to the decision in Rev. Father W. Proost
and Ors. v. The State of Bihar and Ors., [1969] 2 SCR 73, but the said case H
676 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A has no a·pplication here. In that case, it was contended, on behalf of the State
of Bihar, that, as the protection to the minority under Article 29( 1) was only
a right to conserve a distinct language, script or culture of its own, the
college did not qualify for the protection of Article 30( 1) because it was not
founded to conserve them and that consequently, it was open to all sections
of the people. The question, therefore, was whether the college could claim
B the protection of Section 48-B of the Bihar Universities Act read with Article
30(1) of the Constitution, only if it proved that the educational institution was
furthering the rights mentioned in Article 29(1). Section 48-8 of the Bihar
Universities Act exempted a minority educational institution based on religion
or language from the operation of some of the other provisions of that Act.
C This CoU:it, while construing Article 30, held that its width could not be cut
down by introducing in it considerations on which Article 29(1) was based.
1
Articles 29( 1) and 30( I) were held to create two separate rights, though it
was possible that they might meet in a given case. While dealing with the
contention of the state that the college would not be entitled to the protection
under Article 30(1) because it was open to all sections of the people, the
D Court referred to the observations in the Kerala Education Bill case, wherein
it had been observed that the real import of Article 29(2) and Article 30(1)
was that they contemplated a minority institution with a sprinkling of outsiders
admitted into it. The Court otherwise had no occasion to deal with the
applicability of Article 29(2) to Article 30( 1). ·
E
16'9. In State ofKerala, Etc. v. Very Rev. Mother Provincial, Etc. [1971]
1 SCR 734, the challenge was to various provisions of the Kerala University
Act, 1969, whose provisions affected private colleges, particularly those
founded. by minority communities in the State of Kerala. The said provisions,
inter alia, sought to provide for the manner in which private colleges were
F to be administered through the constitution of the governing body or managing
councils in the manner provided by the Act. Dealing with Article 30, it was
observed at pages 739-40 as follows: •
I

"Article 30(1) has been construed before by this Court. Without
referring to those cases it is sufficient to say that the clause
G contemplates two rights which are separated in point of time. The
first right is the initial right to establish institutions of the minority's
choice. Establishment here means the bringing into being of an
institution and it must be by a minority community. It matters not if
a. single philanthropic individual With his OW~ means, founds the
H 'institution or the community at large contributes the funds. The position ·
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 677

in law is the same and the intention in either case must be to found A
an institution for the benefit of a minority community by a member
of that community. It is equally irrelevant that in addition to the
minority community others from other minority communities or even
from the majority community can take advantage of these institutions.
Such other communities bring in income and they do not have to be B
turned away to enjoy the protection.

The next part of the right relates to the administration of such
institutions. Administration means ·•management of the affair.s' of the
institution. This management must be free of control so that the
founders or their nominees can mould the institution as ·they think fit, C
and in accordance with their ideas of how the interests of the
community in general and the institution in particular will be best
served. No part of this management can be taken away and vested in
another body without an encroachment upon the guaranteed right."

The Court, however, pointed out that an exception to the right under Article D
A
30 was the power with the state to regulate education, educational standards
and allied matters. It was held that the minority institutions could not be
allowed to fall below the standards of excellence expected of educational
institutions, or under the guise of the exclusive right of management, allowed
to decline to follow the general pattern. The Court stated that while the
management must be left to the minority, they may be compelled to keep in E
step with others.

110. The interplay of Article 29 and Article 30 came up for consideration
again before this Court in the D. A. V. College case [1971] (Supp.) SCR 688.
Some of the provisions of the Guru Nanak University Act established after
the reorganization of the State of Punjab in 1969 provided for the manner in F
which the governing body was to be constituted; the body was to include a
representative of the University and a member of the College. These and
some other provisions were challenged on the ground that they were violative
of Article 30. In this connection at page 695, it was observed as follows:-

"It will be observed that Article 29(1) is wider than Article 30(1 ), in G
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 H
678 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 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
B 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
receives aid out of State funds, on grounds only of religion·, race,
caste, language or any of them. While this is so these two articles are
c not inter-linked nor does it penn it of their being always read tog~ther."

Though it was observed that Article 30(1) is subject to 29(2), the question
whether the preference to minority students is altogether excluded, was not
considered.

D 111. One of the questions that arose in this case was as to whether the
petitioner was a minority institution. In this case, it was also observed that
A
the Hindus of Punjab were a religious minority in the State of Punjab and
that, therefore, they were entitled to the protection of Article 30(1). Three of
the provisions, which were sought to be challenged as being violative of
Article 30, were Clauses 2(1 ), 17 and 18 of the statutes framed by the
E University under Section 19 of the University Act. Clause 2(l)(a) provided
that, for seeking affiliation, the college was to have a governing body of not
more than 20 persons approved by the Senate and including, amongst others,
two representatives of the University and a member of the College. Clause
17 required the approval of the Vice-Chancellor for the staff initially appointed
F by the College. The said provision also provided that all subsequent changes
in the staff were to be reported to the Vice-Chancellor for his/her approval.
Clause 18 provided that non-govem.ment colleges were to comply with the
requirements laid down in the ordinances governing the service and conduct
of teachers in non-government colleges, as may be framed by the University.
After referring to Kerala Education Bill, Sidhajbai Sabhai and Rev. Father
G W. Proost, this Court held that there was no justification for the provisions
contained in Clause 2(1 )(a) and Clause 17 of the statutes as they interfered
with the rights of management of the minority educational institutions. P.
Jaganmohan Reddy, J., observed that "these provisions cannot, therefore, be
made as conditions of affiliation, the non-compliance of which would {nvolve
H dis-affiliation and consequently they will have to be struck down as offending
T~M.A. PM FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 679
Article 30(1)." A
112. Clause 18, however, was held not to suffer from the same vice as
Clause 17 because the provision, insofar as it was applicable to the minority
institutions~ empowered the University to prescribe by-regulations governing
the service~nd conduct of teachers, and that this was in the larger interest of
the instituti~n.s, and in order to ensure their efficiency and excellence. In this B
connection;· it was observed at page 709, that: -

"Uniformity in the conditions of service and conduct of teachers in
all non-Government Colleges would make for harmony and avoid
frustration. Of course while the power to make ordinances in respect
of t:he matters referred to is unexceptional the nature of the C
infringement of the right, if any, under Article 30(1) will depend on
the :actual purpose and import of the or4inance when made and the
man-ner in which it is likely to affect the administration of the
educational institution, about which it is not possible now to predicate."

113. In The Ahmedabad St. Xaviers College Society and Anr. Etc. v .
D
... State of Gujarat and Anr., [1975] 1 SCR 173, this Court had to consider the
constitutioh~l validity of\certain provisions of the Gujarat University Act,
1949, insofar as they were made to apply to the minority Christian institution.
The impugned provisions, inter alia, provided that the University may
determine that all instructions, teaching and training in courses of studies, in E
respect of which the University was competent to hold examinations, would
be conducted by the U~iversity and would be imparted by the teachers of the
University. Another provision. provided that new colleges that may .seek
affiliation, were to be the c·onstituent colleges of the University. The Court
considered th.e scope and ambit of the rights of the minorities, whether based
on religion· or language, to· establish and administer educational institutions F
of their choice· under Article 30(1) of the Constitution. In dealing with this
aspect, Ray, C.J ., at page 192, while considering Articles 25 to 30, observed
as follows:-

"Every section of the public, the majority as well as minority has G
rights in respect of religion as contemplated in Articles 25 and 26 and
rights in respect of language, script, cult~re as contemplated in Article
· 29. The whole object of conferring the right on minorities under
Article 30 is to ensure that there will be equality between the majority •
and the minority. If the minorities do not have such special protection
they will be denied equality." H
'v

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

A 114. Elaborating on the meaning and intent of Article 30, the learned
Chief Justice further observed as follows:-

"The real reason embodied in Article 30( I) of the Constitution is the
conscience of the nation that the minorities, religious as well as
linguistic, are not prohibited from establishing and administering
B educational institutions of their choice for the purpose of giving their
children the best general education to make them complete men and
women of the country. The minorities are given this protection under
Article 30 in order to preserve and strengthen the integrit.Y and unity
of the country. The sphere of general secular education is intended to
develop the commonness of boys and girls of our country. This is in
c the true spirit of liberty, equality and fraternity through the medium
.,
of education. If religious or linguistic minorities are not given
protection under Article 30 to establish and administer educational '
'

institutions of their choice, they will feel isolated and separate. General
secular education will open doors of perception and act as the natural
D light
,,
of mind for our countrymen to live in the whole."
~ .

liS. The Court then considered whether the religious and linguistic
minorities, who have the right to establish and administer educational
institutions of their choice, had a fundamental right to affiliation. Recognizing
that the affiliation to a University consisted of two parts, the first part relating .
E to syllabi, curricula, courses of instruction, the qualifications of teachers,
library, laboratories, conditions regarding health and hygiene of students
(aspects relating to establishment of educational institutions), and the second
part ccinsist~ng of terms and conditions regarding the management of
institutions, it was held that with regard to affiliation, a minority institution
must follow the statutory measures regulating educational standards and
F
efficiency, prescribed courses of study, courses of instruction, the principles
regarding the qualification of teachers, educational qualifications for entry of
students into educational institutions, etc.

116. While considering the right of the religious and linguistic minorities
G to administer their educational institutions, it was observed by Ray, C.J., at
page 194, as follows:-
'

." ......The right to administer is said to consist of four principal matters.
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
H in their own committee or body consisting of persons selected by
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 681

them. Second is the right to choose its teachers. It is said that minority A
institutions want teachers to have compatibility with the ideals, aims
and aspirations of the institution. Third is the right not to be compelled
to refuse admission to students. In other words, the minority institutions
want to have the right to admit students of their choice subject to
reasonable regulations about academic qualifications. Fourth is the B
right to use its properties and assets for the benefit of its own
institution."
'
117. While considering this right to administer, it was held that the
same was not an absolute right and that the right was not free from regulation.
While referring to the observations of Das, C.J., in the Kerala Education Bill C
case, it was. reiterated in the St. Xaviers College case that the right to administer
was not a right to mal-administer. Elaborating the minority's right to administer
at page 196, it was observed as follows:-

" .....The minority institutions have the right to administer institutions.
This right implies the obligation and duty of the minority institutions D
to render the very best to the students. In the right of administration,
checks and balances in the shape of regulatory measures are required
to ensure the appointment of good teachers and their conditions of
service. The right to administer is to be tempered with regulatory
measures to facilitate smooth administration. The best administration
will reveal no trace or colour of minority. A minority institution E
should shine in exemplary eclecticism in the administration of the
institution. The best compliment that can be paid to a minority
institution is that it does not rest on or proclaim its minority character."

118. Ray, C.J., concluded by observing at page 200, as follows:-
F
"The ultimate goal of a minority institution too imparting general
secular education is advancement of learning. This Court has
consistently held that it is not only permissible but also desirable to
regulate everything in educational and academic matters for achieving
excellence and uniformity in standards of education.
G
In the field of administration it is not reasonable to claim that minority
institutions will have complete autonomy. Checks on the administration
may be necessary in order to ensure that the administration is efficient
and sound and will serve the academic needs of the institution. The
right of a minority to administer its educational institution involves, H
682 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A as part of it, a correlative duty of good administration."

119. In a concurrent judgment, while noting that "c/ause.(2) of Article
29 forbids the denial ofadmission to citizens into any educational institution
maintained by the State or receiving aid out of State funds on grounds only
of religion, race, caste, language or any of then", Khanna, J. then examined
B Article 30, and observed at page 222, as follows:-
"Clause (I) of Article 30 gives right to all minorities, whether based
on religion or language, to establish and administer educational
institutions of their choice. Analyzing that clause it would follow that
the right which has been conferred by the clause is on two types of
c minorities. Those minorities may be based either on religion or on
language. The right conferred upon the said minorities is to establish
and administer educational institutions of their choice. The word
"establish" indicates the right to bring into existence, while the right
to administer an institution means the right to effectively manage and
D conduct the affairs of the institution. Administration connotes
management of the affairs of the institution. The management must
be free of control so that the founders or their nominees can mould
the institution as they think fit and in accordance with their ideas of
· how the interest of the community in general and the institution in
particular ;Will be best served. The words "of their choice" qualify the
E educational institutions and show that the educational institutions
established and administered by the minorities need not be of some
particular class; the minorities have the right and freedom to establish
and administer such educational institutions as they choose. Clause
(2) of Article 30 prevents the State from making discrimination in the
matter of grant of aid to any educational institution on the ground
F
that the institution is under the management of a minority whether
based on religion or language.

120. Explaining the rationale behind Article 30, it was observed at
page 224, as foliows:-
G "The idea of giving some special rights to the minorities is not to
have a kind of a privileged or pampered section of the population but
to give to the minorities a sense of security and a feeling of confidence.
The great leaders of India since time immemorial had preached the
;doctrine of tolerance and catholicity of outlook. Those noble ideas
H were enshrined in the Constitution. Special rights for minorities were
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [KIRPAL, CJ.) 683

designed not to create inequality. Their real effect was to bring about A
equality by ensuring the preservation of the minority institutions and
by guaranteeing to the minorities autonomy in the matter of the
administration of these institutions. The differential treatment for the
minorities by giving them special rights is intended to bring about an
equilibrium, so that the ideal of equality may pot be reduced to a B
mere abstract idea but should become a living reality and result in
true, genuine equality, an equality not merely in theory but also in
fact."

121. While advocating that provisions of the Constitution should be
construed according to the liberal, generous and sympathetic approach, and c
after.. considering the principles which could be discerned by him from the
earlier decisions of this Court, Khanna, J., observed at page 234, as follows:-

" .....The minorities are as much children of the soil as the majority
and the approach has been to ensure that nothing should be done as
might deprive the minorities of a sense of belonging, of a feeling of D
security, of a consciousness of equality and Qf the awareness that the
conservation of their religion, culture, ·language and script as also the
protection of their educational institutions is a fundamental right
enshrined in the Constitution. The same generous, liberal and
sympathetic approach should weigh with the courts in construing
Articles 29 and 30 as marked the deliberations of the Constitution- E
makers in drafting those articles and making them part of the
fundamental rights. The safeguarding of the interest of the minorities
amongst sections of population is as important as the protection of
the interest amongst individuals of persons who are below the age of
majority or are otherwise suffering from some kind of infirmity. The F
Constitution and the laws made by civilized nations, therefore,
generally contain provisions for the protection of those interests. It
can, indeed, be said to be an index of the level of civilization and
catholicity of a nation as to how far their minorities feel secure and
are not subject to any discrimination or suppression."
G
122. The learned Judge then observed that the right of the minorities
to administer educational institutions did not prevent the making of reasonable
regulations in respect of these institutions. Recognizing that the right to
administer educational institutions could not include the right to mal-
administer, it was held that regulations could be lawfully imposed, for the
receiving of grants and recognition, while permitting the institution to retain H
684 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

· .· A its character as a minority institution. The regulation "must satisfy a dual test
-the test ofreasonab/eness, and the test that it is regulative ofthe 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. " It was pennissible for the authorities to prescribe regulations,
which must be complied with, before a minority institution could seek or
B retain affiliation and recognition. But it was also stated that the regulations .,
made by the authority should not impinge upon the minority character of the
institution. Therefore, a balance has to be kept between the two objectives -
that of ensuring the standard of excellence of the institution, and that of
preserving the right of the minorities to ·establish and administer their
C educational institutions. Regulations that embraced and reconciled the two
objectives could be considered to be reasonable. This,· in our view, is the
correct approach to the problem.

123. After referring to the earlier cases in relation to the appointment
of teachers, it was noted by Khanna, J., that the conclusion which followed
D was that a law which interfered with a minority's choice of qualified teachers,
or its disciplinary control over teachers and· other members of the staff of the
institution, was void, as it was violative of Article 30( I). While it was
permissible for the state and its educational authorities to prescribe the
qualifications of teachers, it was held that once the teachers possessing the
E requisite qualifications were selected by the minorities for their educational
institutions, the state would have no right to veto the selection of those
teachers. The selection and appointment of teachers for an educational
institution was regarded as one of the essential ingredients under Article
30(1). The Court's attention was drawn to the fact that in the Kerala Education
Bill case, this Court had opined that Clauses (11) and (12) made it obligatory
F for all aided schools to select teachers from a panel selected from each
district by the Public Service Commission and that no teacher of an aided
school could be dismissed, removed or reduced in rank without the previous
sanction of the authorized -officer. At page 245, Khanna, J., observed that in
cases subsequent to the opinion in the Kerala Education Bill case, this Court
G had held similar provisions as Clause (11) and Clause (12) to be violative of
Article 30(1) of the minority institution. He then observed as follows:-

The opinion expressed by this Court in Re Kerala Education Bill
j ". . . . .
...
(supra) was of an advisory character and though great weight should .-.
· be attached to it because of its persuasive value, the said opinion
cannot override the opmion subsequently expressed by this Court in
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA (KIRPAL, CJ.] 685

contested cases. It is the law declared by this Court in the subsequent A
contested cases which would have a binding effect. The words "as at
present advised" as well as the preceding sentence indicate that the
view expressed by this Court in Re Kerala Education Bill in this
respect was hesitant and tentative and not a final view in the matter....."

.. 124. In Lilly Kurian V; Sr. Lewina and Ors., [1979] 1 SCR 820, this B
I
Court struck down the power of the Vice-Chancellor to veto the decision of
the management to impose a penalty on a teacher. It was held that the power
of the Vice-Chancellor, while hearing an appeal against the imposition of the
penalty, was uncanalized and unguided. In Christian Medical College Hospital
Employees' Union and Anr. v. Christian Medical College Vel/ore Association C
and Ors., [ 1988] 1 SCR 546, this Court upheld the application of industrial
law to minority colleges, and it was held that providing a remedy against
unfair dismissals would not infringe Article 30. In Gandhi Faizeam College
Shahajhanpur v. University of Agra and Anr., [1975] 3 SCR 810, a law
which sought to regulate the working of minority institutions by providing
that a broad-based management committee could be re-constituted by including D
therein the Principal and the senior-most teacher, was valid and not.violative
•· of the right under Article 30(1) of the Constitul:ion. In All Saints High.School,
Hyderabad Etc. Etc. v. Government ofA.P. and Ors. Etc., (1980] 2 SCR 924,
a regulation providing that no teacher would be dismissed, removed or reduced
in rank, or terminated otherwise except with the prior approval of the E
competent authority, was held to be invalid, as it sought to confer an
unqualified power upon the competent authority. In Frank Anthony Public
School Employees Association v. Union of India and Ors., [1987] I SCR
238, the regulation providing for prior approval for dismissal was held to be
invalid, while the provision for an appeal against the order of dismissal by
an employee to a Tribunal was upheld. The regulation requiring prior approval F
· before suspending an employee was held to be valid, but the provision,
which exempted unaided minority schools from the regulation that equated
the pay and other benefits of employees of recognized schools with those in
schools run by the authority, was held to be invalid and violative of the
equality clause. It was held by this Court that the regulations regarding pay G
and allowances for teachers and staff would not violate Article 30.

125. In the St. Stephen's College case, the right of minorities to
administer educational institutions and the applicability of Article 29(2) to an
institution to which Article 30( I) wa_s applicable came up for consideration.
St. Stephen's College claimed to be a minority institution, which was affiliated H

.
1
686 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A to Delhi University; the College had its own provisions with regard to the
admission of students. This provision postulated that applications would be
invited by the college by a particular date. The applications were processed
and a cut-off percentage for each subject was determined by the Head of the
respective Departments and a list of potentially suitable candidates was
prepared on the basis of 1:4 and 1:5 ratios for Arts and Science students
B respectively, and they were then called for an interview (i.e., for every available
seat in the Arts Department, four candidates were called for interviews;
similarly, for every available seat in the Science Department, five candidates
were called for interviews). In respect of Christian students, a relaxation of
upto 10% was given in determining the cut-ofT point. Thereafter, the interviews
C were conducted and admission was granted. The Delhi University, however,
had issued a circular, which provided that admission should be granted to the
various courses purely on the basis of merit, i.e., the percentage of marks
secured by the students in the qualifying examination. The said circular did
not postulate any interview. Thereafter, the admission policy of St. Stephen,s
Collegewas challenged by a petition under Article 32. It was contended by
D the petitioners that the College was bound to follow the University policy,
rules and regulations regarding admission, and further argued that it was not
a minority institution, and in the alternative, it was not entitled to discriminate
against students on the ground of religion, as the college was receiving grant-
in-aid from the government, and that such discrimination was violative of
E Article 29(2). The College had also filed a writ petition in the Supreme Court
taking the stand that it was a religious minority institution, and that the
circular of the University regarding admission violated its fundamental right
under Article 30. This Court held that St. Stephen's College was a minority
instituti,on. With regard to the second question as to whether the college was
bound by the University circulars regarding admission, this Court, by a majority
F of 4-1, upheld the admission procedure used by the College, even though it
was different from the one laid down by the University. In this context, the
contention of the College was that it had been following its own admission
programme for more than a hundred years and that it had built a tradition of
excellence in a number of distinctive activities. The College challenged the
G 'University circular on the ground that it was not regulatory in nature, and that
it violated its right under Article 30. Its submission was that if students were
admitted purely on the basis of marks obtained by them in the qualifying
examination, it would not be possible for any Christian student to gain
admission. The college had also found that unless a concession was afforded,
the Christian students could not be brought within the zone of consideration
H as they generally lacked merit when compared to the other applicants. This
f.~
. '
'

T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 687

Court referred to the earlier decisions, and with regard to Article 30(1 ), A
observed at page 596, paragraph 54, as follows:-

"The minorities whether based on religion or language have the right
to establish and administer educational institutions of their choice.
The administration of educational institutions of their choice under
Article 30( 1) means 'management of the affairs of the institution'. B
This management must be free from control so that the founder or
their nominees can mould the institution as they think fit, and in
accordance with their ideas of how the interests of the community in
genera! and the institution in particular wi11 be best served. But the
standards of education are not a part of the management as such. The C
standard concerns the body politic and is governed by considerations
of the advancement of the country and its people. Such regulations
do not bear directly upon management although they may indirectly
affect it. The State, therefore has the right to regulate the standard of
education and allied matters. Minority institutions cannot be permitted
to fall below the standards of excellence expected of educational D
institutions. They <:annot decline to follow the general pattern of
education under the guise of exclusive right of management. While
the management must be left to them, they may be compelled to keep
in step with others ......"

126. It ~as further noticed that the right under Article 30(1) had to be E
read subject to the power of the state to regulate education, educational
standards and allied matters. In this connection, at pages 598-99, paragraph
59, it was observed as follows:-

"The need for a detailed study on this aspect is indeed not necessary.
The right to minorities whether religious or linguistic, to administer F
educational institutions and the power of the State to regulate academic
matters and management is now fairly well settled. The right to
administer does not include the right to maladminister. The State
being the controlling authority has right and duty to regulate all
academic matters. Regulations which will serve the interests of students G
and teachers, and to preserve the uniformity in standards of education
among the affiliated institutions could be made. The minority
institutions cannot claim immunity against such general pattern and
standard or against general Jaws such as laws relating to law and
order, health, hygiene, labour relations, social welfare legislations,
contracts, torts etc. which are applicable to all communities. So long H
688 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A as the basic right of minorities to manage educational institution is
not taken away, the State is competent to make regulatory legislation.
Regulations, however, shall not have the effect of depriving the right
of minorities to educate their children in their own institution. That
is a privilege which is implied in the right conferred by Article 30(1).

B 127. Dealing with the question of the selection of students, it was
accepted that the right to select students for admission was a part of
administration, and that this power could be regulated, but it was held that
the regulation must be reasonable and should be conducive to the welfare of
the minority institution or for the betterment of those who resort to it. Bearing
C this principle in mind, this Court took note of the fact that if the College was
to admit students as per the circular issued by the University, it would have
to deny admissions to the students belonging to the Christian community
because of the prevailing situation that even after the concession, only a
small number of minority applicants would gain -admission. It was the case
of the College that the selection was made on the basis of the candidate's
D academic record, and his/her performance at the interview keeping in mind
his/her all round competence, his/her capacity to b·~nefit from attendance at
the College, as well as his/her potential to contribute to the life of the College.
While observing that the oral interview as a supplementary test and not as the
exclusive test for assessing the suitability of the candidates for college
E adm~ssion had been recognized by this Court, this Court observed that the
admission programme of the college "based on the test of promise and
•
accomplishment of candidates seems to be better than the blind method of
selection based on the marks secured in the qualifying examinations." The
Court accordingly held that St. Stephen's College was not bound by the
impugned circulars of the University. This Court then dealt with the question
F as to whether a preference in favouf of, or a reservation of seats for candidates
belonging to, its own community by the minority institutions would be invalid
under Article 29(2) of the Constitution. After referring to the Constituent
Assembly Debates and the proceedings of the Draft Committee that led to the
incorporation of Articles 29 and 30, this Court proceeded to examine the
question of the true import and effect of Articles 29(2) and 30(1) of the
G Constitution. On behalf of the institutions, it was argued that a preference
given to minority candidates in their own educational institutions, on the
ground that those candidates belonged to that minority community, was not
violative of Article 29(2), and that" in the exercise of Article 30( l ), the · ,
minorities were entitled to establish and administer educational institutions
H for the exclusive advantage of their own community's candidates. This
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 689

contention was not accepted by this Court on two grounds. Firstly, it was A
held that institutional preference to minority candidates based on religion was
apparently an institutional discrimination on the forbidden ground of religion
-the Court stated that "if an educational instilution says yes to one candidate
but says no to other candidate on the ground of religion, it amounts to
discrimination on the ground of religion. The mandate ofArticle 29(2) is that B
there shall not be any such discrimination." It further held that, as pointed
out in the Kerala Education Bill case, the minorities could not establish
educational institutions for the benefit of their own community alone. For if
such was the aim, Article 30(1) would have been differently worded and it
would have contained the words "for their own community". In·this regard,
it would be useful to bear in mind that the Court at page 607, paragraph 81, C
noticed that:-

"Even in practice, such claims are likely to be met with considerable
hostility. It may not be conducive to ·have a relatively homogeneous
society. It may lead to religious bigotry which is the bane of mankind.
In the nation building with secular character sectarian schools or D
colleges, segregated faculties or universities for imparting general
secular education are undesirable and they may undermine secular
democracy. They would be inconsistent with the central concept of
secularism and equality embedded in the Constitution. Every
educational institution irrespective of community to which it belongs E
is a 'melting pot' in our national life. The students and teachers are
the critical ingredients. It is there they develop respect for, and
tolerance of, the cultures and beliefs of others. It is essential therefore,
that there should be proper mix of students of different communities
in all educational institutions.
F
128. The Court then dealt with the contention on behalf of the University
that the minority institutions receiving government aid were bound by the
mandate of Article 29(2), and that they could not prefer candidates from their
own community. The Court referred to the decision in the case ofChampakam
Dorairajan (supra), but observed as follows:
G
" ........the fact that Article 29(2) applied to minorities as well as non-
minorities did not mean that it was intended to nullify the special
right guaranteed to minorities in Article 30( 1). Article 29(2) deals
with non-discrimination and is available only to individuals. General
equality by non-discrimination is not the only need of minorities.
Minority rights under majority rule implies more than non· H
690 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

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

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

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

131. After referring to the following observations in D.A.V. College
H
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [KIRPAL, CJ.] 691

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

the learned Judges remarked at page 610 (para 91) that in the said case, the
Court was not deciding the question that had arisen before them. C
or
132. According to the learned Judges, the question the interplay of
Article 29(2) with Article 30(1) had arisen in th~t case (St. Stephen's case)
for the first time, and had not been considered by the Court earlier; they
observed that "we are on virgin soil, not on trodden ground". Dealing with D
the interplay of these two Articles, it was observed, at page 612, paragraph
96, as follows:-

"The collective minority right is required to be made functional and
is not to be reduced to useless lumber. A meaningful right must be
shaped, moulded and created under Article 30( 1), while at the same E
time affirming the right of individuals under Article 29(2). There is
need to strike a balance between the two competing rights. It is
necessary to mediate between Artic1e 29(2) and Article 30(1), between"
letter and spirit of these articles, between traditions of the past.and
the convenience of the present, between society's need for stability
and its need for change." F
133. The two competing rights are the right of the citizen not to be
. denied admission granted under Article 29(2), and right of the religious or
linguistic minority to administer and establish an institution of its choice
granted under Article 30( 1). While treating Article 29(2) as a facet of equality,
the Court gave a contextual interpretation to Articles 29(2) and 30(1) while G
rejecting the extreme contentions on both sides, i.e., on behalf of the institutions
that Art~cle 29(2) did not prevent a minority institution to preferably admit
only members belonging to the minority community, and the contention on
behalf of the State that Article 29(2) prohibited any preference in fav\lur of
a minority community for whose benefit the institution was established. The H
692 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Court concluded, at pages 613-14, para I02, as follows:-
;

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

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

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

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

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

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

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

139. Like any other private r' unaided institutions, similar unaided G
educational institutions administered by linguistic or religious minorities are
assured maximum autonomy in relation thereto; e.g., method of recruitment
of teachers, charging of fees and admission of students. They will have to
comply with the conditions of recognition, which cannot bt such as to whittle
down the right under Article 30. H
' .
·1'
694 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

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

143. This means that the right under Article 30( 1) implies that any
grant that is given by the state to the minority institution cannot have such
conditions attached to it, which will in any way dilute or abridge the rights
H of the minority institution to establish and administer that institution. The
T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [KIRPAL, CJ.] 695

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

144. It cannot be argued that no conditions can be imposed while giving
aid to a minority institution. Whether it is an. institution run by the majority
or the minority, all conditions that have relevance to the proper utilization of C
the grant-in-aid by an educational institution can be imposed. All that Article
30(2) states is that on the ground that an institution is under the management
of a minority, whether based on religion or language, grant of aid to that
educational institution cannot be discriminated against, if other educational
institutions are entitled to receive aid. The conditions for grant or non-grant
of aid to educational institutions have to be uniformly applied, whether it is D
a majority-run institution or a minority-run institution. As in the case of a
majority-run institution, the moment a minority institution obtains a grant of
aid, Article 28 of the Constitution comes into play. When an educational
institution is maintained out of State funds, no religious instruction can be
provided therein. Article 28( 1) does not state that it applies only to educational. E
institutions that are not established or maintained by religious or linguistic
minorities. Furthermore, upon the receipt of aid, the provisions of Article
28(3) would apply to all educational institutions whether run by the minorities
or the non-minorities. Article 28(3) is the right of a person studying in a state
recognized institution or in an educational institution receiving aid from state
funds, not to take part in any religious instruction, if imparted by such F
institution, without his/her consent (or his/her guardian's consent if such a
person is a minor). Just as Article 28( 1) and (3) become applicable the moment
any educational institution takes aid, likewise, Article 29(2) would also be
attracted and become applicable to an educational institution maintained by
the state or receiving aid out of state funds. It was strenuously contended that
the right to give admission is one of the essential ingredients of the right to G
administer conferred on the religious or linguistic minority, and that this right
should not be curtailed in any manner. It is difficult to accept this contention.
If Article 28(1) and (3) apply to a minority institution that receives aid out
of state funds, there is nothing in the language of Article 30 that would make
the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article H
l-..
696 SUPREME COURT REPORTS [2002J SUPP. 3 S.C.R.

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

145. What is the true scope an_d effect of Article 29(2)? Article 29(2) .
is capable of two interpretations - one interpretation, which is put forth by the
Solicitor General and the other counsel for the different States, is that a
G minority institution rec~iving aid cannot deny admission to any citizen on the
grounds of religion, race, caste, language or any of them. In other words, the
minority institution, once it takes any aid, cannot make any reservation for
,; its own community or show a preference at the time of admission, i.e., if the: .
educational institution was a private unaided minority institution, it is free to
admit all stu4ents of its own community, but once aid is received, Article
H 29(2) makes it obligatory on the institution not to deny admission to a citizen
T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 697

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

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

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

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

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

148. Both Articles 29 and 30 fonn a part of the fundamental rights
Chapter in Part III of th.e Constitution. Article 30 is confined to minorities, p
be it religious or linguistic, and unlike Article 29(1 ), the right available under
the said Article cannot be availed by any section of citizens. The main
distinction between Article 29( 1) and Article 30( 1) is that in the fanner, the
right is confined to conservation of language, script or culture. As was observed
in the Father W. Proost case, the right given by Article 29(1) is fortified by
Article 30(1 ), insofar as minorities are concerned. In the St Xaviers College G
case, it was held that the right to establish an educational institution is not
·· confined to conservation of language, script or culture. When constitutional
provisions are interpreted, it has to be borne in mind that the interpretation
should be such as to further the object of their incorporation. They cannot be
read in isolation and have to be read hannoniously to provide meaning anq .H
698 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

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

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

T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [KIRPAL, CJ.] 699
Article 29{2) are not subverted. It is for this reason that a variable percentage A
of admission of minority students depending on the type of institution and
education is desirable, and indeed, necessary, to promote the constitutional
guarantees enshrined in both Article 29(2) and Article 30 .

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

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

151. The right of the aided minority institution to preferably admit
students of its community, when Article 29(2) was applicable, has been G
clarified by this Court over a decade ago in the St. Stephen's College case.
While upholding the procedure for admitting students, this Court also held
that aided !llinority educational institutions were entitled to preferably admit
their community candidates so as to maintain the minority character of the
institution, and that the state may regulate the intake in this category with due H
700 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

153. We would, however, like to clarify one important aspect at this
stage. The aided linguistic minority educational institution is given the right
G to admit students belonging to the linguistic minority to a reasonable extent
only to ensure that its minority character is preserved and that the objective
of establishing the institution is not defeated. If so, such an institution is
under an obligation to admit the bulk of the students fitting into the description
of the minority community. Therefore, the students of that group residing in
H the state in which the institution is located have to be necessarily admitted
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [K1RPAL, CJ.] 701

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

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

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

CONCLUSION G
Equality and Secularism

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

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

·A family is of..paramount importance for her.
157. .For a healthy family, it is· important that each member is strong
and healthy. But then, all members do not have the same constitution, whether
physical and/or mental. For harmonious and healthy growth, it is but natural
for the parents, and the mother in particular, to give more attention and food
B to the weaker child so as to help him/her become stronger. Giving extra food .
and attention and ensuring private tuition to help in his/her•studies will, in a
sense, amount to giving the weaker child preferential treatment. Just as lending
physical support to the aged and the infirm, or providing a special diet,
cannot be regarded as unfair or unjust, similarly, conferring certain rights on
C a special class, for good reasons, cannot be considered inequitable. All the
people of India are not alike, and that is why preferential treatment to a ·
special section of the society is not frowned upon. Article 30 is a special right
conferred on the religious and linguistic minorities because of their numerical
handicap and to instill in them a sense of security and confidence, even
though the minorities cannot be per se regarded as weaker sections or
D underprivileged segments of the society.
158. The one billion population of India consists of six main ethnic
groups and fifty-two major tribes; six major religions and 6,400 castes and
sub-castes; eighteen major languages and I ,600 minor languages and dialects.
E The essence of secularism in India can best be depicted if a relief map of
India is made in mosaic, where the aforesaid one billion people are the sma11
pieces of marble that go into the making of a map. Each person, whatever
his/her language, caste, religion has his/her individual identity, ~hich has to
be preserved, so that when pieced together it goes to form a depiction with
the different geographical features of India. These small pieces of marble, in
F the form of human beings, which may individually be dissimilar to each
other, when placed together in a systematic manner, produce the beautiful
map of India. Each piece, like a citizen of India, plays an important part in
making of the whole. The variations of the colours as well as different shades
of the same colour in a map is the result of these small pieces of different
0 shades and colours of marble, but even when one small piece of marble is
removed, the whole map of India would be scarred, and the beauty would be
lost.
159. Each of the people oflndia has an important place in the formation
of the nation .. Each piece has to retain its own colour. By itself, it may be an
H insignificant stone, but when placed in a proper manner, goes into the making
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA (KIRPAL, CJ.} 703
of a full picture of India in all its different colours and hues. A
160. A citizen of India stands in a similar position. The Constitution
recognizes the differences among the people of India, but it gives equal
importance to each of them, their differences notwithstanding, for only then
can there be a unified secular nation. Recognizing the need for the preservation
and retention of different pieces that go into the mak~ng of a whole nation, B
the Constitution, while maintaining, inter alia, the basic principle of equality,
contains adequate provisions that ensure the preservation of these different
pieces.

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

ANSWERS TO ELEVEN QUESTIONS: D
Q. 1. What is the meaning and content of the expression "minorities"
in Article 30 of the Constitution of India?
A. Linguistic and religious minorities are covered by the expression
"minority'' under Article 30 of the Constitution. Since
reorganization of the States in India has been on linguistic lines, E
therefore, for the purpose of determining the minority, the unit
will be the State and not the whole of India. Thus, religious and
linguistic minorities, who have been put at par in Article 30,
have to be considered State·wise.
Q. 2. What is meant by the expression "religion" in Article 30( 1)? F
Can the followers of a sect or denomination of a particular religion
claim protection under Article 30(1) on the basis that they
constitute a minority in the State, even though the followers of
that religion are in majority in that State?
A. This question need not be answered by this Bench; it will be G
dealt with by a regular Bench.
Q. 3 (a) What are the indicia for treating an educational institution as
a minority educational institution? Would an institution be
regarded as a minority educational institution because it was
established by a person(s) belonging to a religious or linguistic H
704 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

The right to admit students being an essential facet of the right to
administer educational institutions of their choice, as contemplated under
Article 30 of the Constitution, the state government or the university may not
be entitled to interfere with that right, so long as the admission to the unaided
F educational institutions is on a transparent basis and the merit is adequately
taken care of. The right to administer, not being absolute, there could be
regulatory measures for ensuring educational standards and maintaining
excellence thereof, and it is more so in the matter of admissions to professional
institutions.
G A minority institution does not cease to be so, the moment grant-in-aid
is received by the institution. An aided minority educational institution,
therefore, would be entitled to have the right of admission of students
belonging to the minority group and at the same time, would be required to
admit a reasonable extent of non-minority students, so that the rights under
H Article 30(1) are not substantially impaired and further the citizens' rights
T.M.A. PAl FOUNDATION 'II. STATE OFKARNATAKA [KIRPAL, CJ.] 705

under Article 29(2) are not infringed. What would be a reasonable extent, A
would vary from the types of institution, the courses of education for which
admission is being sought and other factors like educational needs. The
concerned State Government has to notify the percentage of the non·minority
students to be admitted in the light of the above observations. Observance of
inter se merit amongst the applicants belonging to the minority group could B
be ensured. In the case cf aided professional institutions, it can also be
stipulated that passing of the common entrance test held by the state agency
is necessary to seek admission. As regards non-minority students who are
e1igible to seek admission for the remaining seats, admission should normally
be on the basis of the common entrance test held by the state agency followed
by counselling wherever it exists. C
Q. 5. {a) Whether the minority's rights to establish and administer
educational institutions of their choice will include the procedure
and method of admission and selection of students?
A. A minority institution may have its own procedure and method
of admission as well as selection of students, but such a procedure D
must be fair and transparent, and the selection of students in
professional and higher education colleges should be on the basis
of merit. The procedure adopted or selection made should not be
tantamount to mal-administration. Even an unaided minority
institution ought not to ignore the merit of the students for E
admission, while exercising its right to admit students to the
colleges aforesaid, as in that event, the institution will fail to
achieve excellence.
Q. 5. {b) Whether the minority institutionst right of admission of
students and to lay down procedure and method of admission, if F
any, would be affected in any way by the receipt of State aid?
A. While giving aid to professional institutions, it would be
pennissible for the authority giving aid to prescribe by·rules or
regulations, the conditions on the basis of which admission will
be granted to different aided colleges by virtue of merit, coupled G
with the reservation policy of the state qua non·minority students.
The merit may be detennined either through a common entrance
test conducted by the concerned University or the Government
followed by counselling, or on the basis of an entrance test
conducted by individual institutions - the method to be followed
is for the university or the government to decide. The authority H
706 SUPREME COURT REPORTS {2002J SUPP. 3 S.C.R.

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

B · Q. 5. (c) Whether the statutory provisions which. regulate the facets
· ·- of ad~inistration like control over educational agencies, control
over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
employees, teachers and Principals including their service
con.ditions and regulation of fees, etc. would interfere with the
c right of administration of minorities? .
A. So far as the statutory provisions regulating the facets of
'' administration are concerned, in case of an unaided minority
' educational institution, the regulatory measure of control should
· be minimal and the conditions of recognition as well as the
. .I
D ·'· conditions of affiliation to an university or board have to be
·~ complied with, but in the matter of day-to-day management, like
the appointment of staff, teaching and non-teaching, and
administrative control over them, the management should have
the freedom and there should not be any external controlling
agency. However, a rational procedure for the selection of
E
teaching staff and for taking disciplinary action has to be evolved
.by the management itself.
'
fqr redressing the grievances of employees of aided and unaided
in_stitutions who are subjected to punishment or tennination from
service, a mechanism will have to be evolved, and in our opinion,
F appropriate tribunals could be constituted, and till then, such
tribunals could be presided over by a Judicial Officer of the rank
of District Judge.
~e State or other controlling authorities, however, can always
prescribe the minimum qualification, experience and other
G conditions bearing on the merit of an individual for being
appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State, ·
without interfering with the overall administrative control of the
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [KIRPAL, CJ.] 707
management over the staff. .A
Fees to be charged by unaided institutions cannot be regulated
but no institution should charge capitation fee.
Q. 6. (a) Where can a minority institution be operationally located?
Where a religious or linguistic minority in State 'A' establishes
an educational institution in the said State, can such educational B
institution grant preferential admission/reservations and other
benefits to members of the religious/linguistic
.
group from
.
other·
States where they are non-minorities? A. This question need
not be answered by this Bench; it will be dealt with by a regular
Bench. C
Q. 6. (b) Whether it would be correct to say that only the members
of that minority residing in State 'A' will be treated as the
members of the minority vis-a-vis such institution?
A. This question need not be answered by this Bench; it will be
dealt with by a regular Bench. D
Q. 7. Whether the member of a linguistic non-minority in one State
can establish a trust/society in another State and claim minority
status in that State?
A. This question need not be answered by this Bench; it will be E
dealt with by a regular Bench.
~

Q. 8. Whether the ratio laid down by this Court in the St. Stephen's
case (St. Stephen's College v. University of Delhi, [1992] 1 SCC
558 is correct? If no, what order?
A. The basic ratio laid do~n by this Court in the St. Stephen's F
College case is correct, as indicated in this judgment. However,·
rigid percentage cannot be stipulated. It has to be left to authorities
to prescribe a reasonable percentage having regard to the type of
institution, population and educational needs of minorities.
Q. 9. Whether the decision of this Court in Unni Krishnan J.P. v. G
State of A.P., [1993] l SCC 645 (except where it holds that
primary education is a fundamental right) and the scheme framed
thereunder require reconsideration/modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan's case and
the direction to impose the same, except where it holds that H
708 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

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

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

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

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

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

We find that expression 'minorities' has been employed only at four
places in the Constitution of India. Head note of Article 29 uses the word H
710 SUPREME cqURT REPORTS [2002) SUPP. 3 S.C.R.

A minorities. Then again the expressions Minorities or minority have been
employed in head note of Article 30 and sub clauses (l) and. (2) of Article
30. However, omission to define minorities in the Constitution does not mean
that the employment of words 'minorities' or 'minority' in Article 30 is of
less significance. At this stage it may be noted that the expression 'minorities'
B has· been used in Article 30 in two senses - one based on religion and other
on basis of language. However prior to coming into force of the Constitution
the expression minority was understood in terms of a class based on religion
having different electorates. When India attained freedom, the framers pf the
Constitution threw away the idea of having separate electorates basFd on
rt:ligion and decided to have a system of joint electorates so that every
C candidate in an election would have to seek support of all sections of the
constituency. In tum special safeguards were provided to minorities and they
were made part of Chapter Ill of the Constitution with a view to instill a
sense .of confidence and security to the minorities.

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

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

G Dr. B.R. Ambedkar while intervening in debate in regard to amendment
to· draft Article 23 which related to the rights of religious and linguistic
· minorities stated that "the term 'minority' was used therein not in the technical
sense of the word minority as we have been accustomed to use it for purposes
of certain political safeguards, such as representation in the legislature,
H represe.ntation in the services an~ so on". According to him, the word minority
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 711

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

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

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

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

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

"6. The. contention of the petitioners is that they have an exclusive . ·
right to administer the institution under Art. 30 (1) of the Constitution
H and that the order of the Director of Public Instruction constitutes
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, .1.] 713

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

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

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

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

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

"(39) In India, the Kerala High Court, after observing that the
Constitution granted specific rights to minorities, declared that "in
the absence of any special definition we must hold that any community
religious or linguistic, which is numerically less than 50% of the H
714 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

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

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

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

Entry 11

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

Entry 25

"Vocational or Technical training of labour"

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

• I
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE,J.] 715
Entry 25 A
"Education including technical education, medical education and
universities subject to the provisions of Entries 63, 64, 65 and 66 of
,. List I; vocational and technical training of Labour".

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

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

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

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

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

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

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

•
I
'
T.M.A. PAl FOUNDATIONv. STATE OF KARNATAKA [V.N. KHARE,J.} 717
The person or persons establishing an educational institution who A
belong to either religious or linguistic group who are less than fifty per
cent of total pQpulation of the state hi which educational institutional is
established would be linguistic or religious minorities.

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

Here, I am concerned with the third category of minority institutions
and my answer to the question is confined to the said category of minority
educational institutions.
E
It is urged on behalf of the minority institutions that Article 30(1)
confers an absolute right on linguistic or religious minorities to establish and
administer educational institutions of their choice. According to them, the
expression 'choice' indicates that one of the purposes of establishing
educational institutions is to give secular education to the children of minority
communities and, therefore, such institutions are not precluded from denying F
admission to members of non-minority communities on grounds only of
religion, race, caste, language or any of them. In nutshell, the argument is
that Article 30( I) is not subject to Article 29(2). Whereas, the argument of
learned Solicitor General and other learned counsel is that any minority
institution receiving government aid is bound by the mandate of Article 29(2) G
and such a minority institution cannot discriminate between the minority and
majority while admitting students in such institutions. According to them,
Article 30(1) does not confer an absolute right on the institutions set up by
the linguistic or religious minorities receiving government aid and such
institutions cannot extend preference to the members of their own community
in the matter of admission of students in the institutions. H
718 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

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

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

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

"
,,

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

school on the premise that his mother tongue was English. He was refused A
admission in view of the aforesaid Government Order, as the student was
neither an Ang1o-lndian whose mother tongue was English nor a citizen of
non-Asiatic descent. This was challenged by means of a petition under Article
226 before the Bombay High Court and the Govt. order was struck down. On
appeal to the Apex Court, this Court held tnus:
B
"Article 29(1) gives protection to any secti~n of the citizens having
a distinct language, script or culture by guaranteeing their right to
conserve the same. Article 30(1) secures to all minorities whether
based on religion or language, the right to establish and administer
educational institutions of their choice. Now, suppose the State C
maintains an educational institution to help conserving the distinct
language, script or culture of a section of the citizens or makes grants-
in-aid of an educational institution established by a minority
community based on religion or language to conserve their distinct
language, script or culture who can claim the protection of Article
29(2) in the matter of admission into any such institution.? Surely, D
the citizens of the very section whose language, script or culture is
sought to bf~ conserved by the insti~ution or the citizen who belonged
to the minority group which has established and is administering the
institution, do not need any protection against themselves and therefore,
Article 29(2) is not designe~ for the protection of this section or this E
minority. Nor do we see any reason to limit article 29(2) to citizens
belonging to a minority group other than the section or the minorities
referred to in article 29(1) or article 30(1 ), for the citizens, who do
not belong to any minority group, may quite conceivably need this
protection just as much as the citizens of such other minority groups.
If it is urged that the citizens of the majority group are· amply protected· F
by article 15 and do not require the protection of article 29(2), then
there are several obvious answers to that argument. The language of
article 29(2) is wide and unqualified and may well cover all Citizens
whether they belong to the majority or minority group. Article 15
protects all citizens against the State whereas the protection of article
29(2) .extents against the State or any body who denies the right G
conf~rred by it. Further article 15 protects all citizens against
discrimination generally, but article 29(2) is a protection against a
particular species of wrong namely denial of admission into educational
institutions of the specified kind. In the next place article 15 is quite
general and wide in its terms and applies to all citizens, whether they H
720 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

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

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

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

F (emphasis supplied)

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

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

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

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

(emphasis supplied)

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

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

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

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

(I) Article 29(2) confers right on the citizens for admission into G
educational institution maintained or aided by the State without
discrimination. To limit this right only to citizens belonging to
minority group will be to provide double protection for such
citizens and to hold that citizens of the majority group have no
special educational rights in the nature of a right to be admitted
into an educational institution for maintenance of which they H
722 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

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

The first decision in the third category of cases is Rev. Sidhajbhai
Sabhai a'nd Ors. v. State of Bombay and Anr., [1963] 3 SCR 837. In the said
F decision;·· although the question as to whether Article 30( 1) is subject to
Article 29(2) was not considered, yet it was held that under Article 30( 1)
fundamental right declared in terms absolute. It was also held that unlike
fundamental freedoms guaranteed under Article 19 it is not subject to
reasonable restrictions. It is intended to be a real right for the protection of
G minorities in the matter of setting up of educational institutions of their own
choice. The right is intended to be effective and not to be whittled down by
so-called regulatory measures conceived in the interest not of the minority
educational institution, but of the public or the nation as a whole.
\
In Rt. Rev. Magr. Mark Netto v. Government ofKerala and Ors., [1979]
H 1 SCR 609, a question arose whether Regional Deputy Director of Public
T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [V.N. KHARE, J.) 723

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

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

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

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

(emphasis supplied)
F
From the aforesaid four categories of decisions, it appears that there is
not a single decision of this Court where it has been held that Article 30( 1)
is not subject to Article 29(2). On the contrary there are bulk of decisions of
this Court holding that minority institution cannot refuse admission of members
of non-minority community and Article 30( I) is subject to Article 29(2). If
I go by precedent, it must be held that Article 30( I) is subject to Article G
29(2). However, learned counsel for minority institutions strongly relied upon
the decision in the case of Rev. Sidhajbai (supra) and argued that once Article
. 30(1) is fundamental right declared absolute in terms, it cannot be subjected
to Article 29(2). Since this Bench is of eleven Judges and decisions of this
Court holding that Article 30( l) is subject to Article 29(2) are by lesser H
724 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

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

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

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

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

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

Thus, the accepted view appears to be that the report of the Constituent
Assembly debates can legitimately be taken into consideration for construction
of the provisions of the Act or the Constitution. In that view of the matter,
it is necessary to look into the Constituent Assemb~y debates which led to
H enacting' Articles 29 and 30 of the Constitution.
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 725

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

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

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

(emphasis supplied) F
3. Religious instruction shall not be compulsory for a member of a
community which does not profess such religion.

4. It shall be the duty of every unit to provide in the public educational
system in towns and districts in which a considerable proportion of
citizens of other than the language of the unit are residents, adequate G
facilities for ensuring that in the primary schools the instruction shall
be given to the children of such citizens through the medium of their
own language.
Nothing in this clause shall be deemed to prevent the unit from making H
726 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

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

5. No legislation providing state aid for schools shall discriminate
against schools under the management of minorities whether based
on religion or language.
B
6. (a) Notwithstanding any custom or usage or prescription, all Hindus
without any distinction of caste or denomination shall have the right
of· access to and worship in all public Hindu temples, choultries, ...
dharmasalas, bathing ghats, and other religious places.

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

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

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

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

(iv) All minorities whether of religion, community or language shall
' be free in any unit to establish and administer educational institutions
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [V.N. KHARE, J.] 727

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

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

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

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

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

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

(3) (a) All minorities whether based on religion, community or
language shall be free in any unit to establish and administer
educational institutions of their choice;
H
728 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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

This became Clause 18.

B The recommendations of the Advisory Committee were then placed
before the Constituent Assembly which met on 1st May, 1947. When Clause
18 was moved by Shri Sardar Vallabhbhai Patel for adoption by the House,
several members were of the view that Clause 18 may be referred back to the
Advisory Committee for reconsideration in the light of discussion that took
·place on that· day. However, Shri K.M. Munshi • another member of the
C Constituent Assembly suggested that only sub-clause (2) of Clause 18 be
referred back to the Advisory Committee for reconsideration. Ultimately, the
amendment moved by Shri K.M. Munshi was adopted and sub-clause (2) of
Clause 18 was referred back to the Advisory Committee for reconsideration.
Thereafter. Clause 18(1) and Clause 18(3) were accepted without any
D amendment.
The Advisory Committee re-considered Clause 18(2) and recommended
that Clause 18(2) be retained after deleting the words "nor shall any religious
instruction be compulsorily imposed on them" as the said provision was
already covered by Clause 16. Thus, sub-clause (2) was placed before the
E House on 30th August, 1947 for being adopted along with the recommendation
of the Advisory Committee. When the matter was taken up, Mrs. Purnima
Banerji proposed the following amendments that after the word 'State' the
words 'and State-aided' be inserted. While proposing the said amendment,
Mrs. Banerji stated thus:

F "The purpose of the amendment is that no minority, whether based
on community or religion shall be discriminated against in regard to
the admission into State•aided. and State educational institutions. Many
---
of the provinces, e.g. U.P., have passed resolutions laying down that
rio educational institution will forbid the entry of any members of any
community merely on the ground that they happened to belong to a
G particular community even if that institution is maintained by a donor
who has specified that that institution should only cater for members
of his particular community. If that institution seeks State aid, it must
allow members of other communities to enter into it. In the olden
days, in the Anglo-Indian schools (it was laid down that, though
H those schools would be given to Indians. In the latest report adopted
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
730 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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 A
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 B
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 C
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 E
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 F
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, G
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
732 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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
G 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
H are 'cultural and educational rights' and as such the word 'minority' ought

~I
~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 .
734 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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
B 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
C 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 B
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 C
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 D
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 E
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 F
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 G
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
rI 1 ... •.. "
•t, • . SI3PREME COURT REPORTS {2002] SUPP. 3 S.C.R.

":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 ' . '
. f

'-' ' 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
E 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
F 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
G 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
H 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 B
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 C
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 D
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•
'.~a.;..or·_,.,J:~<-1
r. JI·•·J"''
"'·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 RE.~ l.

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·.
t, ,. 1.-. 1 • - •t • t.-'"'
r.Jr. ~~ i ..... lq"'(
t 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 · ~,..•' ~ .-11l ·,,
•"U, .. o;. · :·' ~ '
·•:·. J' ··~ · •'1f' J:,.r p ' .' _'\no ... .

. A1DED);'CAN THERE BE 'GOVERNMENT-REGULATIONS"':
·~! !I: l I!Jtl 'C;ANftiF' s-o: f6' 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
ru:;lbt.ARTlCLE...30, WHAT)S lO BE 'THE1UNJT; THE.STATE OR:•·
,f:ott
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
.(2) .to (5) XXX r' II. XXX t
_ _ .... , ~· .. y, ... " .-·. • ~ ..... r ·" ,·,.~;·J~~ 10 '"'1·,. '11':. 't •: ,...
I_ ...•. . l.. . XXX. i
..r ,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::,, F I
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:
H 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 A
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 B
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 C
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 E
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 F
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) -. \ Oii . I •I:_ ~~
:~ I 1'1., lp: ·,I~ 11".1 I
'·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 .duJ . . r,, ~~.
" d -i~ ·.· '( {~·~-I .... ~ Lf1' . ,_ !' t ~ ~ ~ J ,----i . d ·.:

FI '' :~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• J .11 ~ . -H~;f" h..1 ·~;··, . r)-

•~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
C 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
D 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
G 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
H 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 I
ground... ·~·~·~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 C
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 D
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, E
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
F
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

-i
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
D 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
E 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
H 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 A
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 B
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 C
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 E
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 F
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 G
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
E 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
F 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
G 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 A
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 B
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 C
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 of
the
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
B 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
C 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
D 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
F 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
G
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 C
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 D
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]".

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

The expression "interest of the nation" means something which concerns or A
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 B
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 C
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 D
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 E
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
C 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
D 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 A
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 B
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 C
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 F
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 G
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
F 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
G 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
H 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 B
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 C
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, D
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

'State' in Article 12 of the Constitution in view of the judgment of the
Constitution Bench of seven learned Judges in Pradeep Kumar Biswas and
G Ors. v. Indian Institute of Chemical Biology and Ors., [2002] 5 sec 1] I.
They form a special class of educational institutions because they have the
protection of Article 3.0(1) under which they are established and administered
by minorities, whether based on religion or language. Clause (2) of Article
30 is also a pointer to the fact that the ir.stitutions falling under clause ( 1) of
Article 30 form a separate class. I have noticed above that the mandate of
H clause (2) of Article 29 is addressed to all educational institutions maintained
T.M.A. PAl FOUNDATION~·. STATE OF KARNATAKA [QUADRI , J.] 763
by the State or receiving ~id out of State funds. It is, therefore, a general A
mandate applicable to all the categories of institutions. It has been settled by
a long line of decisions of this Court with which I am in respectful agreement
that granting of aid to such institutions cannot be such as to denude them of
their character as minority institutions. Even after receiving aid, they remain
minority educational institutions in all their attributes.
B
The right conferred on the student community under Article 29(2) is a
truncated right though it is available to each student and against all the
institutions maintained by the State or receiving aid from the State funds.
Nevertheless, the right under Article 30(1) is a special right conferred on
minorities, whether based on religion or language, to establish and to administer C
educational institutions of their choice and with that goes the special right of
the minority students to seek admission in such institutions. Article 29(2)
even if regarded as a special right in regard to the student community is of
general application in regard to all the institutions maintained by the State or
receiving aid from the State funds when compared to special right conferred
on minorities under Article 30. A provision may be special in one aspect and D
general in other aspect.

In The Life Insurance Corporation of India v. D.J Bahadur and Ors.,
AIR (1980) SC 2181, Krishna lyer, J. speaking for a three-Judge Bench
observed:
E
"For certain purposes, an Act may be general and for certain other
purposes it may be special and we cannot blur distinctions when
dealing with finer pOints of law. In law, we have a cosmos of relativity
not absolutes - so too in life."
•
This was approved by a Constitution Bench of this Court in Ashoka Marketing F
Ltd. and Anr. v. Punjab National Bank, AIR (1991) SC 855.

In the light of the above discussion on the principle of generalia
specialibus non deroganl, I have no hesitation in concluding that the general
right of the students under Article 29(2) of the Constitution available in
respect of an educational institutions in general does not prevail over the G
special right conferred on the minority educational institutions established
and administered under Article 30(1) and receiving aid by virtue of Article
30(2) 'of the Constitution.

The minority educational institutions established and administered under
Article 30( l) for the benefit of the students of their community have the right H
764- SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A to admit the students of their choice of their community and without prejudice
_to the right of the minority students to admit students of the non-minority.
They have a right to claim aid under clause (2) of Article 30, if the State
decides to grant aid to other educational institutions in the State. The grant
of aid by the State cannot alter the character of a minority institution, including
its choice of the students. Unlike Article 337, there is nothing in clause (2)
B of Article 30 to suggest that grant of aid will result in making a percentage
of seats available for non-minority students or be subject to Article 29(2).
r
From the point of view of the minority students who seek admission in the
minority educational institutions, it hardly makes a difference whether the
institution is an aided institution or an unaided institution. In the case of a
c rich minority not getting aid under clause (2) of Article 30 for the minority
educational institution established and administered under clause (1) of Article
30, the right of the minority students seeking admission therein cannot be
different from the right of poor minority students se.eking admission · in
educational institutions established and administered by poor minorities which
are aided. On the institutions deciding to take aid from the State, the right of
D minority students
'
to seek admission in such institutions cannot be affected.
~ '
It follows that the concomitant special right of students who belong to
minority community which established the institution and is administering it
under Article 30(1 ), to seek admission in such an institution has precedence
ovet the general right of non-minority students under Article 29(2). So having ~
E regard to the right of the minority educational institutions to admit the students (
of their choice as well as the right of the students of the minority community
to seek admission in such institutions, it is difficult to comprehend that merely
on the ground that the institution is receiving aid out of State funds, their
rights can be set at naught with reference to Article 29(2). Therefore, it
1-
F appears to-me that on grant of aid by the State, Article 29(2) does not control
Article 30(1 ). \ ~
I

Even the historical background in which clause (2) of Article 29 came '·

to be inserted would support this interpretation. '\
The pre-cursor of Article 29(2) was clause 18(2), which read as under:
G )
"18(2). No minority whether based on religion, community or language fo"

shall be discriminated against in regard to the admission into state
educational institutions." '{}
This clause was intended to ensure that minority students are not discriminated
H against in regard to admission into State educational institutions on the ground ...
~··

•
\'
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA (QUADRl, J.] 765

that the minorities are conferred special right to establish and administer A
educational institutions of their choice. To enlarge this right, an amendment
was suggested by Smt. Pumima Banerji proposing that after the words 'State
educational institutions' the words 'State aided' be inserted so that they could
avail of the same right agaiilst State aided educational institutions as well.
But the proposed amendment to that clause moved by her was initially not B
accepted and the clause, quoted above, was adopted. It later became Article
23(2), which read thus:

"23(2). Cultural and Educational Rights -

(1) XXX XXX XXX
_..
• c
(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
by the State.

(3) XXX XXX XXX D
When this Article was debated again, an amendment was suggested that for
the words 'no minority' the words 'no citizen' be substituted. At that point,
Shri Thakur Das Bhargava moved an amendment and the following clause
was substituted:
E
"No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds
only or religion, race, caste, language or any of them."

This was ultimately adopted and that clause became clause (2) of Article 29.
From this background, it is clear that the benefit which was intended only for F
minorities - not to be denied admission into any educational institution
maintained by the State - was extended in two aspects; the first is that 'all
the citizens' were brought in the class of beneficiaries and the second is that
in addition to the institutions maintained by the State, 'the institutions receiving
aid out of the State funds' were also included. In my view, the intention in G
extending the scope of clause (2) of Article 29 could never have been to
deprive the minorities of the benefit which they were otherwise having under
clauses (I) and (2) of Article 30. A clause. which was intended mainly to
further protect the ·minorities c.ould not be so construed as to stultify their
right conferred under Article 30 of the Constitution.
H
766 SUPREME COURT REPORTS [20021 SUPP. 3 S.C.R.

A Admission of the Constituent Assembly debates for purposes of
interp~etation of the provisions of the Constitution is of doubtful authority.
I do no~ propose to delve into the question of admissibility of the debates of
the Constituent Assembly for interpreting a constitutional provision. Suffice
it to mention that in view of the speeches of the Law Lords in the case of
B Black-C,lawson v. Papierwerke AG, (1975) AC 591 and of the Privy Council
in Admjnistraior-Genera/ of Bengal v. Prem Nath Mullick, (1895) 22 I.A.
107 and of this Court in A.K. Gopalan v. State of Madras, AIR (1950) SC
27 (para 112) and Trav-Cochin v. Bombay Company Ltd., AIR (1952) SC
366, I am of the view that admissibility of speeches made in the Constituent
Assembly for interpreting provisions of the Constitution is not permissible.
C The decisions of this Court in His Holiness Kesavananda Bharati
Sripadagalavaru v. State of Kerala, [1973] 4 SCC 225; R.S. Nayak v. A.R.
Antulay, AIR (1984) SC 684; Indra Sawhney etc. etc. v. Union of India and
Ors. etc.' etc., AIR (1993) SC 477; K.S. Paripoornan v. State of Kerala, AIR
(1995) SC 1012 and P. V. Narasimha Rao v. State (CBIISPE), AIR (1998) SC
t'
D 2120 do not alter that position nor do they lay down a different proposition.
The preponderance of opinion appears to me not to rely on the debates in the
Constituent Assembly or the Parliament to interpret a constitutional provision
although they may be relevant for other purposes.

It would be interesting to notice the following observations of Lord
E Wilberforce in Black-Clawson's case (supra) in this context :

· "It would be degradation of that process if Courts were to be a
reflecting mirror of what the interpreting agency would say."

A glaring example of a debate leading astray is the contention urged that the
F cultural and educational rights sanctified in Articles 29 and 30 were intended
to be ~nly temporary. Unlike Article 334 in regard to reservation of seats and
special representation, there is nothing in the Constitution itself to support
such an impish and novel contention. Lest we forget, we should remind
ourselves that compromises were made, pledges and assurances were held
out io build a strong united sovereign secular nation. In the rhetoric of the
G age' the spirit in which constitutional provisions were fonnulated cannot be
lost sight of and interpretation divorced from the words employed, cannot be
resorted to, to undo what our founding fathers did to enact and give to
ourselves this great Constitution. Such contentions do little service to the
letter or spirit of the Constitution in preserving the delicate balance. For these
H reasons, I am of the view that interpretation of constitutional provision cannot
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[QUADRI,J .] 767

be founded on the speeches made in the Constituent Assembly because as A
Lord Reid in Black Clawson's case (supra) observes :

"We are seeking not what Parliament meant but the true meaning of
what Pari iament said."

Insofar as historical matters are concerned, it is an accepted position B
that they are admissible for the purpose of interpretation of a constitutional
provision and to that extent, I referred to that aspect.

In any event, there is nothing specific in the debates to suggest that
Article 29(2) was intended to cut down the rights conferred under clauses (l)
and (2) of Article 30 of the Constitution. C
The next aspect which needs to be looked into is, whether the
interpretation put by me is in consonance with the principles of equality and
secularism which are the basic features of our Constitution.

The principle of equality has two facets; (i) equality in law and (i'i) D
equality in fact. Just a provision for equality in law would be of no consequence
unless the provision also take care to bring about equality in fact. Securing
equality of status and of opportunity is a constitutional mandate enshrined in
Article 14 of the Constitution which directs that the State shall not deny to
any person equality before the Jaw or equal protection of the law within the E
territory of India. Article 14 prohibits unequal treatment or discrimination
against any person within the territory of India by State. The great objective
of equality before law, guaranteed under Article 14 of the Constitution, cannot
be achieved if unequals are treated alike as that would only result in inequality.
The founding fathers of the Constitution were alive to the ground realities
and the existing inequalities in various sections of the society for historical F
or other reasons and provided for protective discrimination in the Constitution
with regard to worr:en, children, socially and educationally backward classes
of citizen, scheduled castes and scheduled tribes by enabling the State to
make special provision for them by way of reservation as is evident from
clauses (3) and (4) of Atticle 15 and clauses (4) and (4A) of Article ·16 of
the Constitution. The apprehensions of religious minorities and their demand G
for separate electorates, were settled by providing freedom of conscience and
free profession, practice and propagation of religion for all the citizens under
Articles 25, 26 and 28 which take care of their religious rights of minorities
equally; by special provisions their right to conserve a distinct language,
script or culture is guaranteed as a fundamental right in Article 29; further, H
768 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A all minorities, whether based on religion or language, are conferred an
additional fundamental right to establish and administer educational institution
of their choice as enshrined in Article 30 of the Constitution. The right under
Article 30(1) is regarded so sacrosanct by the Parliament in its constituent
capacity that when by operation of the law of the land - Land Acquisition Act
B - compensation awarded for acquisition of a minority educational institution
was to result in restricting or abrogating the right guaranteed under clause ( 1)
of Article 30, it by the Constitution (Forty Fourth (Amendment) Act) inserted
clause ( 1-A) in Article 30. It provides that the Parliament in the case of a
Central legislation or a State legislature in the case of State legislation shall
make a specific law to ensure that the amount payable to the minority
C educational institutions for the acquisition of their property will not be such
as will in any manner impair their functioning. A Constitution Bench of this
... Court in interpreting clause ( 1-A) of Article 30 in Society of St. Joseph's
College v. Union of India and Ors., [2002] 1 SCC 273 observed thus :

· "Plainly, Parliament in its constituent capacity apprehended that
D minority educational institutions could be compelled to close down
or curtail their activities by the expedient of acquiring their property
and paying them inadequate amounts in exchange. To obviate the
violation of the right conferred by Article 30 in this manner, Parliament
introduced the safeguard provision in the Constitution, first in Article
E 31 and then in Article 30."

The problems of minority rights are not peculiar to India which is a
multi-religious, multi-linguistic and multi-cultural nation. Recognition of rights
of minorities, their preservation by skilful tackling of the problems became
evident in Europe after the First World War. It will be useful to refer to the
F opinion of the Permanent Court of International Justice (for short, 'International
Court') in regard to minority schools in Albania (known as 'the Albanian'
case) which would illustrate how equality in fact is an essential requisite to
achieve equality in law and for that purpose preferential treatment of minority
is inherent. At the time of Albania's accession to the League of Nations, it
G signed a declaration which, inler alia, protected the rights of minorities to
establish educational institutions. It appears that by the amendment of the
Albanian Constitution, a provision was made for compulsory primary education
for all the Albanian nationals in State schools as a result of which all private
schools whether run by the majority or minority were to be closed. On a
complaint by the minority of Albanian nationals, the case was referred to the
H International Court. The Albanian Government took the plea that the abolition
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [QUADRJ, J.] 769

of private schools was a measure of general application to both majority as A
well as minority schools and as such there was no violation of minority
rights. This plea was rejected and it was observed that the object of the
declaration was,

"first to ensure that nationals belonging to racial religious or linguistic
minorities shall be placed in every respect on a footing of perfect B
equality with the other nationals of the State and the second to ensure
for the minority elements suitable means for the preservation of their
racial peculiarities, their traditions and their national characteristics."

It was held that these two requirements were indeed closely overlapping for,
there would be no true equality between a majority and a minority, if the C
latter were deprived of its own institutions and was consequently compelled
~ to renounce that which constitutes the very essence of its being a minority.
It was also observed that equality in law precludes discrimination of any kind
whereas equality in fact may involve the necessity of differential treatment in
order to attain a result which establishes an equilibrium between different D
situations. (emphasis supplied) The abolition of institutions which alone would
satisfy the special requirements of the minority and their replacement by
Government institutions would destroy the equality of treatment for, its effect
would be to deprive the minority of the institutions, appropriate to its needs,
whereas the majority would continue to have them supplied in the institutions
created by the State. It is this principle that is given effect to in guaranteeing E
minority rights under Article 30(1) which is nothing but a differential treatment
for proper application of the principle of equality enshrined in Article 14 of
the Constitution and this cannot be lost sight of when dealing with Article
29(2).

The principle decided in Albanian case was followed by Reddy, J., F
Khanna, J. and Mathew, J. in St. Xavier's case (supra).

We have nothing in common in application of principle· of equality
embodied in Article 14 to various social groups including minorities under
our Constitution and the process of affirmative action which is an offshoot G
· of the 14th Amendment to the Constitution of the United States of America.
The 14th Amendment to the American Constitution does not make any
allowance for the deprived classes of the society unlike the approach adopted
by the Indian Constitution to equality and secularism, which is loaded with
favourable discrimination clauses. Even so, in the case of Regents of the
University ofCalifornia v. Bakke, 438 US 265 (1978), Justice Powell suggested H
770 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A some measures which would be consistent with the equality clause, viz.,
extra remedial_ training and education for minorities (however expensive),
aggressive recruitment of minorities and even the consideration of an
applicant's minority status as an 'equitable plus factor' in conjunction with
his other merits. In that case, adoption of quota system for the minority
B groups ·in that country was rejected which is in tune with City of Richmond
v. J.A. C_roson Co., 488 U.S. 469. Another example of preferential treatment
to attain equality in fact is to be found in United Steelworkers v. Weber, 443,
U.S. I93 ( 1979). In that case, the court upheld the double standards in grading
minorities as justified by legislative history and intent.
'l

C The Canadian Constitution, by Section 23, specifically provides for
minority language educational rights.

~e find no substance in the contention that granting aid to minority
educational institutions under Article 30, which cater to the needs of the .,
minorities, will infringe the principle of secularism. There can be no doubt
0 that secularism is a basic feature of our Constitution. It needs to be noted that
the State aid, if any, is not to the religious institutions of the minorities or for
imparting religious instructions to them though our Constitution is not lacking
in prov!ding grants to such religious institutions in India. The State aid; if
any, may be given to educational institutions established and administered by
minorities based on religion or language. Those who advocate this contention
E ignoreI the fact that India is a multi-religious, multi-cultural and multi-linguistic
nation and the Constitution guarantees preservation of their peculiarities.
Both before as well as after the re-organisation of States, each State was and
is now having various linguistic minorities. Linguistic minorities have become
more vulnerable after the re-organisation of States on the basis of language.
F If, in a State, aid is given to the institutions of linguistic minority, the State
is nonetheless helping the citizens of India in coming up in life and joining
the mainstream. No national interest or public interest will be served by
denying the aid to linguistic minority institutions for not_ throwing it open to
the students of linguistic majority. On reciprocal basis, each State would be
prone to adopt the same attitude with reference to linguistic minority groups
G and would either deny aid or insist that the institutes be thrown open to the
linguistic majority of the State which, to say the least, would frustrate the
very purpose of the protection of the linguistic minority right. Further, if each
State adopts this view of not giving aid to the minority institutions or insisting
that they be thrown open for the majority groups, it would only encourage
H bitter!feeling among the various groups in the States and that would only
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [QUADRI,J.] 77J

hamper assimilating of linguistic majority and linguistic minority which will A
weaken the process of national integration rather than strengthen it. By and
large, the same logic would apply to religious minority institutions as different
religious communities are in majority in different States though a few only.
Having pondered over this aspect, I have unhesitatingly come to the
conclusion that by serving their own linguistic minorities and throwing their B
institution open to the majority groups only on fulfillment of the need of
minorities in a State, is not in violation of the scheme of Article 29{2) and
Article 30 ofthe Constitution. I am, therefore, convinced that by not applying
Article 29(2) of the Constitution to minority educational institutions based on
religion or language, the principle of equality or secularism will not in any way
be violated. C
The first case in which the ground of challenge was based on Article ·
29(2), is The State ofMadras v. Srimathi Champakam Dorairajan etc., [1951]
SCR 525, which is popularly known as 'the Communal G.O. 'case. In that case,
for the purpose of admission of students to the engineering and medical
colleges, maintained by the State, a unit of 14 seats was fixed in which D
specified number of seats were allocated among various groups on the basis
of religion and caste. The challenge to the G.O. was upheld by the High Court.
On appeal to this Court a Constitution Bench of seven learned Judges of this
Court took the view that the Communal G.O. constituted a violation of
fundamental right guaranteed to the citizens of India by Article 29(2) of the E
Constitution and was void. As on that date, clause (4) of Article 16 enabled
the State to make a provision for the reservation of appointments or posts
in favour of any backward class of citizens which was not adequately
represented in services under the State but no such provision was' made in
regard to seats in educational institutions maintained by the State. There was
no such provision in regard to admission into educational institution in F
Article 15( I) of the Constitution which prohibited discrimination on grounds
of religion, race, caste, sex, place of birth or any of them. Be that as it may,
it was not a case where right of the students belonging to minorities to seek
admission in an educational institution established under Article 30( 1) of the
Constitution vis·a-vis the claim of non-minorities under Article 29(2) was G
considered.

The next case in which Article 29 came up for consideration of this
Court is the Bombay Education Society (supra). There, the respondent-
society was running an Anglo-Indian school which was recognised and aided
by the State. The medium of instruction in the school was English. The State H
772 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A of Bombay issued a circular to the effect that thereafter only children of
Anglo-Indians or of non-Asiatic descent could secure admission in the schools
administered by the respondent society. Both the Society as well as the
students who were precluded from seeking admission in the school, by the
impugned order, challenged the said order in a writ petition under Article 226
before the High Court at Bombay. Against the judgment of the High Court
B quashing the impugned circular and allowing the writ petition, the State came
up in appeal before this Court. It was held by the Constitution Bench of five
learned Judges of this Court that in view of the fundamental right guaranteed
to a minority, like the Anglo-Indian community, under Article 29(1) to conserve
its own language, script or culture and the right to establish and administer
C educational institutions of its own choice under Article 30( I), there is implicit
therein the right to impart instruction in its own institutions to the children
of its own community in its own language and that the State by its police
power cannot determine the medium of instruction in opposition to sue~
fundam~ntal right and, therefore, the government order was violative of Articles
D 29(2) and 30(1) of the Constitution. The question with which we are faced now
was not addressed in that case.

It is true that while rendering its advi~ory opinion in The Kerala
Education Bill (supra), on question No.2, this G:ourt considered the scope of
Articles 29 and 30 and observed, inter alia, that the right under Article 30(1)
E however, was subject to clause (2) of Article 29 which provided that no citizen
should be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds of religion, race,
caste, language or any one of them. It must also be pointed out that in that
case speaking for six of the learned Judges, Das, CJ. laid down,

F ~ "To say that an institution which receives aid on account of its being
a minority educational institution must not refuse to admit any member
~ of any other community only on the grounds there mentioned (Article
· 29(2)) and then to say that as soon as such institution admits such
an outsider it will cease to be a minority institution is tantamount to
· saying that minority institutions will not, as minority institutions, be
G entitled to any aid. The real import of Article 29(2) and Article 30(1)
seems to us to be that they clearly contemplate a minority institution
-... ~ith a sprinkling of outsiders admitted into it. "

[Emphasis supplied]

H In that case, the Court was answering the plea that in an institution
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[QUADRI,J.] 773
under Article 30( I), if a non-minority student is admitted, it will lose its A
character as a minority institution. This case also did not deal with the
question whether denial of admission to a non-minority student by an aided
minority educational institution protected under Article 30(1) in order to
provide admission in a course of study to a minority student would be in
violation of Article 29(2} of the Constitution.
B
The only case in which the right of non-minority students to secure
admission in a minority educational institution under Article 29(2) came up for
consideration of this Court is St. Stephen's College v. University of Delhi
[1992] 1 SCC 558. The case revolved around the validity of St. Stephen's
college's admission policy to interview candidates for admission into the C
college, in addition to marks obtained by them in the qualifying examination,
in order to assess the merit of students. The Delhi University provided that
merit_ for the purpose of admission was to be assessed solely on the basis
of the marks obtained by candidates in the qualifying examination. It was
contended by counsel for non-minority students that denial of admission to
a non-minority student by an institution under Article 30 was violative of D
Article 29(2). St. Stephen's College was receiving State aid. The Court, by
-- ·-majority, held t~at the admission policy of the college was not arbitrary or
violative of any fundamental right and that the right to admit students of their
choice is an essential part of the right to administer under Article 30(1 ); that
such an institutional preference (as practiced by Stephens) for minority E
candidates would not be violative of Article 29(2); that although Article 29
and Article 30 are distinct and separate, they do overlap and competing
interests under Article 29(2) and Article 30 must be balanced in order to
harmoniously construe both articles and give effect to both of them. It was
held that although minorities were entitled to accord preference in favour of,
or reserve seats for candidates belonging to their own community, yet F
preferential admission of candidates could be only upto 50% of the annual
admissions to their institution in order to _maintain the minority character of
their institution. With respect to the other 50% seats, admission should be
open to all the students based on merit, and in that no preferential admission
by the· institution was permissible.
G
The right conferred under Article 29(2) is an individual right. The
difficulty is arising because it is sought to be converted into a collective right
., of non-minority students vis-a-vis minority educational institutions so as to
take away a slice of the seats available in such institutions. In an institution
established and administered under Article 30(1), the need of minority students H
774 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A is foremo~t as it is for their benefit that the institution exists. The grant of
aid to the 'institution is to fulfil its objective and not to deviate from the object ..
and barter the right of the minority students. It is only when the need of the
minority ~tudents is over that in regard to the remaining seats that the
institutio'n can admit students of non-minority. In each year in a given course
the same number of minority students may not apply. The minority educational
B institutions can admit non-minority students of their choice in the left over
seats in each year as Article 29(2) does not override Article 30( I). If the need
of the minority is to be given its due, the question of determining the need
cannot be left to the State. Article 30 is intended to protect the minority
educational institutions from interference of the State so they cannot be
C thrown at .the mercy of the State. The State cannot be conferred with the
power to determine the need of each minority institution in the country which
will be both unrealistic and impracticable apart from abridging the right under
Article 30{1 ). It is for this and the other reasons mentioned above, in my .
respectful view, fixing a percentage for intake of minority students in minority
educational institutions would impinge upon the right under Article 30 as it
D would amount to cutting down that right. The best way to ensure compliance
with Article 29(2) as well as Article 30(1) is to consider individual cases where
denial of admission of a non-minority student by a minority educational
institution is alleged to be in violation of Article 29(2) and provide appropriate
relief.
E
Another contention that is pressed is when Article 28 applies to
institutions established and administered under Article 30(1), why Article
29(2) shou.ld not also be applicable?

Article 28 reads as follows :
F
"28. Freedom as to attendance at religious instruction or religious
worship in certain educational institutions- (l) No religious instruction
shall be provided in any educational institution wholly maintained out
of State funds.

G (2) Nothing in clause ( 1) shall apply to an educational institution
which is administered by the State but has been established under
any endowment or trust which requires the religious instruction shall
be imparted in such institution.

(3) No person attending any educational institution recognised by the
H State or receiving aid out of State funds shall be required to take part
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA[QUADRI,J.] 775

in any religious instruction that may be imparted in such institution A
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."

A perusal of the said Article makes it clear that the mandate of clause ( 1)
thereof is that in any educational institution wholly maintained out of State B
funds, no religious instruction shall be provided. It obviously applies to State
educational institutions and not to private educational· institutions including
minority educational institutions under Article 30. Clause (2) of Article 28
which is in the nature of a proviso to clause ( 1), excludes application of clause
(I) to an educational institution established under any endowment or trust C
requiring imparting of religious instructions therein, and is administered by
the State. Sub-clause (3) gives liberty to a person attending any educational
institution recognised by the State or receiving aid out of State funds not to
be required to 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, D
if such person is a minor, his guardian has given his consent thereto. It may
be noticed that imparting of religious instruction or conducting of religious
worship in an educational institution which is recognised by the State or
which is receiving aid of the State funds is not prohibited. It is only the
individual freedom of conscience of those who attend such an institution that
is protected. In contra-distinction to the mandate in respect of an institution
E
which is wholly maintained out of the State funds, postulated under clause
(I), the injunction contained in clause (3) is that an educational institution
recognised by the State or receiving aid out of the State funds cannot oblige
any person attending the educational institution to take part in any religious
instruction or to attend any religious worship being imparted therein. Obviously, F
the right conferred under any provision of the Constitution including Article
30 does not either expressly or by necessary implication empower any
educational institution including a minority educational institution to compel
anybody to have instructions in the educational institution established and
administered thereunder much less religious instructions or to attend any
religious worship. Article 28 forms part of the group of articles placed under G
the caption 'Right to freedom of Religion' and not part of 'Cultural and
Educational Rights'. But that apart, clause (3) of Article 28 is a personal right.
It is a species ofthe principle of freedom of religion enshrined in Article 25.
Article 28(3) stands in the same position to Article 25(1) as Article 29(2) to
Article 15( t ). The premise of the contention, therefore, appears to be H
776 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A inappropriate and the logic inapplicable to substantiate that Article 29(2)
overrides Article 30( 1) of the Constitution.

I found no support from the decisions of this Court in The Dargah
Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., [1962] 1 SCR 383
and Tilkayat Shri Govind/alji Maharaj v. The State of Rajasthan and Ors.,
B (1964] 1 SCR 561 for the contention that just as Article 26 was held to be
subject to Article 25, so also Article 30 should be read subject to Article 29(2).

all
For these reasons, in my view, to create inroads into the constitutional
protection granted to minority educational institutions by forcing students of
dominant groups of the choice of the State or agency of the State for
C admission in such institutions in preference to the choice of minority educational
institutions will amount to a clear violation of the right specifically guaranteed
under Article 30(1) of the Constitution and will turn the fundamental right into
a promise of unreality which wiJJ be impermissible. Right of minorities to admit
or
students non-minority of their choice in their educational institutions set
D up under Article 30 is one thing but thrusting students of non-minority on
minority educational im.titutions, whatever may be the percentage, irrespective
of and prejudicial to the need of the minority in such institution, is entirely
another. It is the former and not the latter course of action, that will be in .
conformity with the scheme of clause (2) of Article 29 and clauses ( 1) and (2)
of Article 30 of the Constitution.
E
RUMA PAL, J. I have had the privilege of reading the opinion of
Hon 'ble the Chief Justice. Although I am in broad agreement with most of t~e
conclusions arrived at in the judgment, I have to record my respectful dissent
with the answer to Question 1 and Question 8 in so far as it holds that Article
F 29(2) is applicable to Article 30( l ). I consequently differ with the conclusions
as stated in answer to Questions 4, 5(b) and ! I to the extent mentioned in
this opinion.
•
Re:· Question 1

G What is the meaning and content of the expression "minorities" in
Article 30 of the Constitution of India?

Article 30 affords protection to minorities in respect of limited rights,
namely, the setting up and administration of an educational institution . .The
question of protection raises three questions : (I) protection to whom? (2)
H against ~hom? and (3) against what? The word minority means "numerically
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMA PAL,J.] 777
less". The question then is numerically less in relation to the country or the A
State or some other political or geographical boundary?

The protection under Article 30 is against any measure, legislative or
otherwise; which infringes the right's granted under that article. The right is
not claimed in a vacuum - it is claimed against a particular legislative or
executive measure and the question of minority status must be judged in B
relation to the offending piece of legislation or executive order. If the source
of the infringing action is the State, then the protection must be given against
the State and the status of the individual or group claiming the protection
must be determined with reference to the territorial limits of the State. If
however the protection is limited to State action, it will leave the group C
which is otherwise a majority for the purpose of State legislation, vulnerable
to Union legislation which operates on a national basis. When the entire
nation is sought to be affected, surely the·- question of minority status must
be detennined with reference to the country as a whole.

In Re: Kerala Education Bill, [1957-1959] SCR 995, p. 1047, the D
·contention of the State of Kerala was that in order to constitute a minority
for the purposes of Articles 29 (1) and 30 (1), persons must be numerically
in the minority in the particular area or locality in which educational institution
I

is or is intended to be constituted. The argument was negatived as being held
inherently fallacious (p.l 049) and also contrary to the language of Article 350-
A. However, the Court expressly refrained from finally opining as to whether E
the existence of a minority community should in circumstances and for the-
purposes of law of that State be determined on the basis of the population
of the whole State or whether it should be determined on the State basis only
when the validity of a law extending to the whole State is in question or
whether it should be determined on the basis of the population of a particular p
locality when the law under attack applies only to that locality. In other words
the issue was - should the minority status be determined with reference to
the source of legislation viz., the State legislature or with reference to the
extent of the law's application. Since in that case the Bill in question was
_admittedly a piece of State legislation and also extended to the whole of the
State of Kerala it was held that "the minority must be determined by reference G
to the entire population of that State". (p.l 050)

In the subsequent decision in DAV College v. State of Punjab (1) 1, this
Court opted for the first principle namely that the position of minorities
should be determined in relation to the source of the legislation in question H
778 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A and it was clearly said:
"~hough there was a faint attempt to canvas the position that religious
or linguistic minorities should be minorities in relation to the entire
.population of the country, in our view they are to be determined only
in'relation to the particular legislation which is sought to be impugned,
B namely that if it is the State legislature these minorities have to be
determined in relation to the population of the State."
'•
In D.A. V College v. State of Punjab, (11), 2 Punjabi had been sought to
be enforced as the sole medium of instruction and for examinations on the
ground that it was the national policy of the Government of India to
C energetically develop Indian languages and literature. The College in question
used Hindi as the medium of instruction and Devnagri as the script. Apart
from holding that the State Legislature was legislatively incompetent to make
Punjabi the sole medium of instruction, the Court reaffirmed the fact that the
College although run by the Hindu community which represents the national
D majority, in Punjab it was a religious minority with a distinct script and
therefore the State could not compel the petitioner-College to teach in Punjabi
or take examinations in that language with Gurmukhi· script.

But assuming that Parliament had itself prescribed Hindi as the
compulsory medium of instruction in all educational institutions throughout
E the length and breadth of the country. If a minority's status is to be determined
only with respect to the territorial limits of a State, non-Hindi speaking
persons who are in a majority in their own State but in a minority in relation
to the rest of the country, would not be able to impugn the legislation on the
ground that it interferes with their right to preserve a distinct language and
script. Oil the other hand a particular institution run by members of the same
F group in a different State would be able to challenge the same legislation and
claim protection in respect of the same language and culture.

Apart from this incongruity, such an interpretation would be contrary
to Article 29( l) which contains within itself an indication of the 'unit' as far
G as minorities are concerned when it says that 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. Merely
because persons having a distinct language, script or culture are resident
within the political and geographical limits of a State within which they may

H ~ l 97 l SCR {Supp) 697.
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [RUMAPAL,J.] 779
be in a majority, would not take them out of the phrase "section of citizens A
residing in the territory of India". It is a legally fortuitous circumstance that
states have been created along linguistic lines after the framing of the
Constitution.

In my opinion, therefore, the question whether a group is a minority or
not must be determined in relation to the source and territorial application of B
the particular legislation against which protection is claimed and I would
answer question 1 accordingly.

Re: Question 8

Whether the ratio laid down by this Court in the St. Stephen's case (St. C
Stephen's College v. University of Delhi, {1992]1 SCC 558 is correct ? If
no, what order?

In St. Stephen's Co/lege-1, the Court decided (a) that the minorities right
to admit students under Article 30( 1) had to be balanced with the rights
conferred under Article 29(2). Therefore the State could regulate the admission D
of students of the minority institutions so that not more than 50% of the
available seats were filled in by the children of the minority community and
(b) the minority institution could evolve its own procedure for selecting
students for admission in the institutions. There can be no quarrel with the
decision of the court on the second issue. However, as far as the first E
· principle is concerned, in my view the decision is erroneous and does not
correctly state the law.

Article 30(1) of the Constitution provides that "All minorities, whether
based on religion or language, shall have the right to establish and administer
educational institutions of their choice". Article 29(2) on the other hand says F
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".
,, Basically, the question is whether Article 30(1) is subject to Article 29(2)
or is Article 29 (2) subject to Article 30(1)? If Article 30(1) does not confer G
th~ right to admit students then of course there is no question of conflict with
Article 29(2) which covers the field of admission into "any educational

2
• 1971 SCR (Supp) 677.

~ 1992 (I) sec sss. H
r
J
,.
780 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

·A institution''. The question, therefore, assumes that the right granted to
minorities under Article 30(1) involves the right to admit students. Is this
assumption valid? The other assumption on which the question proceeds is
that minority institutions not receiving aid are outside the arena of this
appare9t conflict. Therefore the issue should be more appropriately framed as:
- does the receipt of State aid and consequent admission of non-minority
B students affect the rights of minorities to establish and administer educational
institution of their choice?. I have sought to answer the question on an
interpretation of the provisions of the Constitution so that no provision is
rendered nugatory or redundanr: on an interpretation of the provisions in the
context of the objects which were sought to be achieved by the framers of
C the Con~titution; and, finally on a consideration of how this Court has
construed. ~hese provisions in the past.

Both Articles 29 and 30 are in Part III of the Constitution which deals
with 'Fundamental Rights'. The fundamental rights have been grouped and
placed under separate headings. For the present purposes, it is necessary to
D consider the second, fourth and fifth groups. The other Articles in the other
groups are not relevant. The second group consists of Articles 14 to 18 which
have beeri clubbed under 'Right to Equality'. Articles 25 to 28 are placed
under the fourth heading 'Right to Freedom of Religion'. Articles 29 and 30
fall within the fifth heading 'Cultural and Educational Rights'.
E The. rights guaranteed under the several parts of Part III of the
Constitution overlap and provide different facets of the objects sought to be
achieved by the Constitution. These objectives have been held to contain the
basic structure of the Constitution which cannot be amended in exercise of

F
the powers under Article 368 of the Constitution. 5 Amongst these objectives
are those of Equality and Secularism. According to those who have argued --
in favour of a construction by which Article 29(2) prevails over Article 30,
Article 29(2) ensures the equal right to education to all citizens, whereas if
Article 30 is given predominance it would not be in keeping with the
achievement of this equality and would perpetuate differences on the basis
of langl!age and more importantly, religion, which would be contrary to the
G secular character of the Constitution. Indeed the decision in St. Stephens in
holding that Article 29(2) applies to Article 30( 1) appears to have proceeded
Sri Venkataramana Devaru and Ors. v. The Stare of Mysore and Ors., [1958] SCR 895,
918; Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha; [1959] Suppl. I SCR 806;

Keshvananda Bharati v. State of Kerala, AIR (1973) SC 1461 , para: 292, 559, 682
·H and )164.
T.M.A.PAI FOUNDATION''· STATEOFKARNATAKA [RUMA PAL, J.] 781
on similar considerations. Thus it was said that unless Article 29(2) applied A
to Article 30(1) it may lead to "religious bigotry"; that it would be "inconsistent
with the central concept of secularism" and "equality embedded in the
Constitution" and that an "educational institution irrespective of community
to which it belongs is a melting pot in our national Iife". 6 Although Article
30(1) is not limited to religious minorities, having regard to the tenor of the B
arguments and the reasoning in St. Stephens in support of the first principle,
I propose to consider the argument on 'Secularism' first. .

Article 30 and Secularism

The word 'secular' is commonly understood in contradistinction to the
word 'religious'. The political philosophy of a secular Government has been C
developed in the west in the historical context of the pre-eminence of the
established church and the exercise of power by it over society and its
institutions. With the burgeoning presence of diverse religious groups and
the growth of liberal and democratic ideas, religious intolerance and the
attendant violence and persecution of "non-believers" was replaced by ~ D
growing awareness of the right of the individual to profession of faith, or non-
profession of any faith. The democratic State gradually replaced and
marginalised the influence of the church. But the meaning of the word 'secular
State' in its political context can and has assumed different meanings in
different countries, depending broadly on historical and social circumstances,
the political philosophy and the felt needs of a particular country. In one E
country, secularism may mean an actively negative attitude to all religions and
religious institutions; in another it may mean a strict "wall of separation"
· between the State and religion and religious institutions. In India the State
is secular in that there is no official religion. India is not a theocratic State.
I However the Constitution does envisage the involvement of the State in F
matters associated with religion and religious institutions, and even indeed
with the practice, profession and propagation of religion in its most limited
and distilled meaning.

Although the idea of secularism may have been borrowed in the Indian
Constitution from the west, it has adopted its own unique brand of secularism G
based on its particular history and exigencies which are far removed in many
ways from secularism as it is defined and followed in European countries, the
United States of America and Australia.

The First Amendment to the American Constitution is as follows:
[1992] I SCC 558. 607 (para 81). H
-.
782 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A ,"Congress shalJ make no law respecting an establishment of religio~,
or prohibiting the free exercise thereof."

In the words of Jefferson, the clause against establishment of religion
by law was intended to erect 'a wall of separation between Church and State'.
'Reynolds v. United States', (1878) 98 U S 145 at p.l64.
B
The Australian Constitution has adopted the First Amendment in S.ll6
which is based on· that Amendment. It reads: "The Commonwealth shall not
make any laws for establishing any religion, or for imposing any re1igious
observance, or for prohibiting the free exercise of any religion, and no religious
test shall be required as a qualification for any office or public trust under
C the Commonwealth".'

Under the Indian Constitution there is no such "wall of separation"
between the State and religious institutions. Article 16 (5) recognises the
validity of laws relating to management of religious and denominational
D institutions. Art. 28 (2) contemplates the State itself managing educational
institutions wherein religious instructions are to be imparted. And among the
subjects over which both the Union and the States have legislative competence
as set out in List No. Ill of the Seventh Schedule to the Constitution Entry
No.28 are:

E "Charitable and charitable institutions, charitable and religious
endowments and religious institutions".

Although like other secular Governments, the Indian Constitution in
Article 25(1) provides for freedom of conscience and the individual's right
freely to profess, practice and propagate religion, the right is expressly subject
F to public order, morality and health and to the other provisions in Part Ill of
the Constitution. The involvement of the State with even the individual's right
under Article 25(1) is exemplified by Article 25(2) by which the State is
empowered to make any law.
"(a) regulating or restricting. any economic. financial, political
G or other secular activity which may be associated with religious
practice;
(b) providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all

Kidangazhi Manakka/ Narayanan Nambudiripod v. State of Madras, AIR ( 1954)
H Madras 385 (Vol. 41)
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [RUMAPAL,J.) 783
classes and sections of Hindus. A
As a result the courts have upheld iaws which may regulate or restrict
matters associated with religious practices if such practice does not form an
integral part of the particular religion8 •

Freedom of religious groups or collective religious rights are provided B
for under Article 26 which says that:

"Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right -

(a) to establish and maintain institutions for religious and
charitable purposes. C.
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable property; and (d)
To administer such property in accordance with law.

The phrase "matters of religion" has been strictly construed so that D
matters not falling strictly within that phrase may be subject m control and
regulation by the State. The phrase 'subject to public order, morality and
health' and "in accordance with law" also envisages extensive State control
over religious institutions. Article 26 (a) allows all persons of a~y religious
denomination to set up an institution for a charitable purpose, and undisputedly E
the advancement of education is a charitable purpose. Further, the right to
practise, profess and propagate religion under Article 25 if read with Article
26(a) would allow all citizens to exercise such rights through an educational
institution. These rights are not limited to minorities and are available to ·'all
persons'. Therefore, the Constitution does not consider the setting up of
educational institutions by religious denominations or sects to impart the F
theology of that particular denomination as anti-secular. Having regard to the
structure ofthe Constitution and its approach to 'Secularism', the observation
in St. Stephens noted earlier is clearly not in keeping with 'Secularism' as
provided under the Inciian Constitution. The Constitution as it stands does
not proceed on the 'melting pot' theory. The Indian Constitution, rather G
represents a 'salad bowl' where there is homogeneity without an obliteration
of identity.

The ostensible separation of religion and the State in the field of the

Ramanuja v. State ofTamil Nadu, AIR (1972) SC 1586 and Quareshi v. State of Bihar, H
[1959] SCR 629
784 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A States' revenue provided by Article 27 (which prohibits compulsion of an
individual to pay any taxes which are specifically appropriated for the expenses
for promoting or maintaining any particular religious or religious denomination)
does not, however, in tenns prevent the State from making payment out of
the proceeds of taxes generally collected towards the promotion or maintenance
B of any particular religious or religious denomination. Indeed, Article 290(A)
of the. Constitution provides for annual payment to certain Devaswom funds
in the following tenns: "A sum of forty-six lakhs and fifty thousand rupees
shall be charged on, and paid out of the Consolidated Fund of the State of
Kerala every year to the Travancore Devaswom fund; and a sum of thirteen
lakhs and fifty thousand rupees shall ·be charged on, and paid out of the
C Consolidated Fund of the State of Tamil Nadu every year to th~ Devaswom··
Fund established in that State for the maintenance of Hindu temples and
shrines in· the territories transferred to that State on the Ist day of November,
1956, from the State .of Travancore-Cochin." This may be compared with the
decision of the U.S. Supreme Court in Everson v. Board of Education, (JJO
D JUS 1) where it was held that the State could not reimburse transportation
charges of children attending a Roman Catholic School. ·

Article 28 in far.t brings to the fore the nature of the word •secular' used
in the preamble to the Constitution and indicates clearly that there is no. wall
of separation between the State and religious institutions under the Indian
1
E Constitution. No doubt Article 28(1) provides that if the institution is an
educational one and it is wholly maintained by the State funds, religious
instruction cannot be provided in such institution. However, Article 28( 1)
does not forbid the setting up of an institution for charitable purposes by any
religious denomination nor does it prohibit the running of such institution
even though it may be wholly maintained by the State. What it prohibits is
F the giving of religious instruction. Even, this prohibition is not absolute. It
is subject to the extent of sub-Article (2) of Article 28 which provides that
if the educational institution has been established under any endowment or
trust which requires that religious instruction shall be imparted in such
institution, then despite the prohibition in Article 28(1) and despite the fact
G that the education institution is in fact administered by the State, religious
instruction can be imparted in such institution. Article 28(2) thus in no
uncertain terms envisages that an educational institution administered by the
· State and wholly maintained by the State can impart religious instruction. It
recognises in Article 28(3) that there may be educational institutions imparting
religious instruction according to whichever faith and conducting religious
H worship which can be recognised by the State and which can also receive aid
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMAPAL,J.} 785
out of State funds. A
,,
Similarly, Article 28(3) provides that no individual attending any
educational institution which may have been recognised by the State or is
receiving State aid can be compelled to 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 without such person's consent. B
Implicit in this prohibition is the acknowledgement that the State can recognize
and aid an educational institution giving religious instruction or conducting
retigious worship. In the United States, on the other hand it has been held
that State maintained institutions cannot give religious instru.ction even if
such instruction is not compulsory. (See. Tllinois v. Board of Education, C
(1947) (82} Law Ed. 649}.

In the ultimate analysis the Indian Constitution does not unlike the
United States, subscribe to the principle of non-interference of the State in
religious organisations but it remains secular in that it strives to respect all
religions equally, the equality being understood in its substantive sense as D
is discussed in the subsequent paragraphs.

Article 30(1) and Article 14

'Equality' which has been referred to in the Preamble is provided for in
a group of Articles led by Article 14 of the Constitution which says that the E
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Although stated in absolute
tenns Article 14 proceeds on the premise that such equality of treatment is
required to be given to persons who are equally circumstanced. Implicit in the
concept of equality is the concept that persons who are in fact unequally
circumstanced cannot be treated on par. The Constitution has itself provided F
for such classification in providing for special or group or class rights. Some
of these are in Part III itself[Article 26, Article 29(1} and Article 30(1)] Other
such Articles conferring group rights or making special provision for a particular
class include Articles 336 and 337 where special provision has been .made for
the Anglo-Indian Community. Further examples are to be found in Articles G
122, 212 and other Articles giving immunity from the ordinary process of the
law to persons holding certain offices. Again Articles 371 to 37l(H) contain
special provisions for particular States.

The principles of non-discrimination which form another facet of equality
are provided for under the Constitution under Articles 15( J), 16 ( 1) and 29 (2). H
786 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A The first two articles are qualified by major exceptions under Articles 15 (3)
and (4), 16 (3),(4),(4A) and Article 335 by which the Constitution has
empowered the Executive to enact legislation or otherwise specially provide
for certain classes of citizens. The fundamental principle of equality is not (.~
compromised by these provisions as they are made on a consideration that
\
the persons so 'favoured' are unequals to begin with whether socially,
B economically or politically. Furthermore, the use of the word 'any person' in
Article 14 in the context of legislation in general or executive action affecting
group rights is construed to mean persons who are similarly situated. The
classification of such persons for the purposes of testing the differential
treatment must, of course~ be intelligible and reasonable - the reasonableness
c being determined with reference to the object for which the action is taken.
This is the law which has been settled by this Court in a series of decisions,
the principle having been enunciated as early as in 1950 in Chiranjit La/
Chowdhury v. Union of India and Ors., [1950] SCR 869.9

The equality, therefore, under Article 14 isnot indiscriminate. Paradoxical
D as it may seem, the concept of equality permits rational or discriminating
disc.rimination. Conferment of special benefits or protection or rights to a
part1cular group of citizens for rational reasons is envisaged under Article 14
and is implicit in the concept of equality . There is no abridgment of the
content of Article 14 thereby- but an exposition and practical application of
such content.
E
The distinction between classes created by Parliament and classes
provided for in the Constitution itself, is that the classification under the first
may be subjected to judicial review and tested against the touchstone of the
Constitution. But the classes originally created by the Constitution itself are
F not .so subject as opposed to constitutional amendments. 10

On a plain reading of the provisions of the Article, all minorities based
on re'ligion or language, shall have the right to ( 1) establish and (2) administer
educational institutions of their choice. The emphasized words unambiguously
and · in mandatory terms grant the right to all minorities to establish and ...
G administer educational institutions. I would have thought that it is self evident
and ''in any event, well settled by a series of decisions of this Court that
Article 30( 1) creates a special class in the field of educational institutions -
a class which is entitled to special protection in the matter of setting up and
See also in Re. Kerala Education Bill, (1957]: (1959] SCR 995. 1037.

H ul See Keshavananda Bharati v. State ofKerala: AIR (1973) 1461.
1
T.M.A. PAIFOUNDATIONv. STATE OFKARNATAKA [RUMA PAL,J.] 787

administering educational institutions of their choice. This has been affirmed A
in the decisions of this Court where the right has been variously described
as "a sacred obligation" 11 • "an absolute right" 12, "a special right" 13, "a
guaranteed right" 14, "the conscience of the nation" 1\ "a befitting pledge" 16,
"a special right" 17 and an "article of faith" 18

The question then is - does this special right in an admitted linguistic B
or religious minority to establish and administer an educational institution
encompass the right to admit students belonging to that particular community?

Before considering the earlier decisions on this, a semantic analysis of
the words used in Article 30(1) indicates that the right to admit students is C
an intrinsic part of Article 30(1).

First- Article 30(1) speaks ofthe right to set up an educational institution.
An educational institution is not a structure of bricks and mortar. It is the
activity which is carried on in the structure which gives it its character as an
educational institution. An educational institution denotes the process or D
activity of education not only involving the educators but also those receiving
education. It follows that the right to set up an educational institution
necessarily includes not only the selection of teachers or educators but also
the admission of students.

Second - Article 30(1) speaks of the right to "administer" an educational E
institution. If the administration of an educational institution includes and
means its organisation then the organisation cannot be limited to the
infrastructure for the purposes of education and exclude the persons for
whom the infrastructure is set up, namely, the students. The right to admit
students is, therefore, part of the right to administer an educational institution.
F
Third, - the benefit which has been guaranteed under Article 30 is a
II
In re: Kerala Education Bill, [1957-1959] SCR 995,, 1070.
Rev. Sidhajbhai Subhai v. State of Bombay, (1963) 3 SCR 837.
I)
Rev. Father W. Proost and Ors. v. State of Bihar, [ 1969] 2 SCR 173, 192.
I~
State of Kerala v. Very Rev. Mother Pronvincia/, [ 1971] I SCR 734, 740.
G
IS
St. Xaviers College v. Gujarat, [1975] I SCR 173, 192.
16
ibid 223.
17
ibid 224.
IK Lily Kurian v. Lewina. [1979}2 SCC 124, 137.
H
788 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A protection or benefit guaranteed to all members of the minority as a whole.
What is protected is the community right which includes the right of children
of the minority community to receive education and the right of parents to
have their children educated in such institution. The content of the right lies
not in merely managing an educational institution but doing so for the benefit
of the community. Benefit can only lie in the education received. It would be
B meaningless to give the minorities the right to establish and set up an
organisation for giving education as an end in itself, and deny them the
benefit of the education. This-would render the right a mere form without any
content. The benefit to the community and the purpose of the grant of the
right },s in the actual education of the members of the community.
c Finally, -the words 'of their choice' is not qualified by a!ly words of
limitation and would include the right to admit students of the minority's
choice. Since the primary purpose of Article 30( 1) is to give the benefit to the
members of the minority community in question that 'choice' cannot be
~xercised in a manner that deprives the community of the benefit. Therefore,
D the choice must be directed towards fulfilling the needs of the community.
How that need is met, whether by general education or otherwise, is for the
community to determine.

- The interpretation is also in keeping with what this Court has consistently
held. In State of Bombay v. Bombay Education Society 19, the Court said:
E
· • "... surely then there must be implicit in such fundamental right the
right to impart instruction in their own institutions to the children of
their own Community in their own language. To hold otherwise will
'·
be to deprive article 29(1) and article 30(1) of the greater part oftheir
contents."
F
ln Kerala Education Bill, 1957, it was said:

"The minorities, quite understandably, regard it as essential that the
education of their children should be in accordance with the teachings
of their religion and they hold, quite honestly, that such an education
G cannot be obtained in ordinary schools designed for all the members
of the public but can only be secured in schools conducted under the
influence and guidance of people well versed in the tenets of their
religion and in the traditions of their culture. The minorities evidently

H I'J [ 1995] I SCR 568.
T.M.A. PAl FOUNDATION''· STATE OF KARNATAKA [RUMA PAL, J.] 789
desire that education should be imparted to the children of their A
community in an atmosphere congenial to the growth of~heir culture.
Our Constitution makers recognised the validity of their claim and to
allay their fears conferred on them the fundamental rights referred to
above."

The issue of admission to minority institutions under Article 30 arose B
in the decision of Rev. Sidhajbhai Sabhai where the State's order reserving
80 per cent of the available seats in a minority Institution for admission of
persons nominated by the Government under threat of derecognition if the
reservation was not complied with, was struck down as being violative of
Article 30(1). It was said that although the right of the minority may be C
regulated to secure the proper functioning of the institution, the regulations
must be in the interest of institution and not 'in the interest of outsiders'. The
view was reiterated in St. Xaviers College when it was said:

"The real reason embodied in Article 30(1) of the Constitution is the
conscience of the nation that the minorities, religious as well as D
linguistic, are not prohibited from establishing and administering
educational institutions of their ch~ice for the purpose of giving their
children the best general educatiort to make them complete men and
women of the country."

In St. Stephen's College, the Court recognised that: E
"The right to select students for admission is a part of administration.
It is indeed an important facet of administration. This power also
could be regulated but the regulation must be reasonable just like any
other regulation. It should be conducive to the welfare of the minority
institution or for the bettennent of those who resort to it." F
However, in a statement which is diametrically opposed to the earlier
decisions of this Court, it was held:

"The choice of institution provided in Article 30( 1) does not mean
that the minorities could establish educational institution for the benefit G
of their own community people. Indeed they cannot. It was poit:Jted·.
out in Re, Kerala Education Bill that the minorities cannot establish
educational institution only for the benefit of their community. If such
was the aim, article 30( 1) would have been differently worded and it
would have contained the words "for their own community". In the
absence of such words it is legally impermissible to construe the H
790 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A article as conferring the right on the minorities to establish educational
institution for their own benefit..." (P.607)

This conclusion, in my respectful view, is based on a misreading of the
decision of this Court in Kerala Education Bill. In that case, there was no
question of the non-minority students being given admission overlooking the
B needs of the minority community. The Court was not called upon to consider
the question. The underlying assumption in that case was that the only
obstacle to the non-minority student getting admission into the minority
institution was the State's order to that effect and not the "choice'' of the
minority institution itself and a minority institution may choose to admit
C students not belonging to the community without shedding its minority
character, provided the choice was limited to a 'sprinkling'. In fact the learned
Judges in ·st. Stephens case have themselves in a subsequent portion of the
judgment (p.611) taken a somewhat contradictory stand to the view quoted
earlier when they said:

" ...... the minorities have the right to admit their own candidates to
D
maintain the minority character of their institutions. That is a necessary
concomitant right which flows from the right to establis.h and
administer educational institution in Article 30(1). There is also a
related right to the parents in the minority communities. The parents
are entitled to have their children educated in institutions having an
E atmosphere congenial to their own religion."

The conclusion, therefore, is that the right to admission being an
essential part of the constitutional guarantee under Article 30(1 ), a curtailment
of that fundamental right in so far as it affect benefit of the minority community
would amount to an infringement of that guarantee.
F
An Institution set up by minorities for educating members of the minority
community does not cease to be a minority institution merely because it takes
aid. There is nothing in Article 30(1) which allows the drawing of a distinction
in the exercise of the right under that Article between needy minorities and
G affluent ones. Article 30(2) of the Constitution reinforces this when it says,
_"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". This
assumes that even after the grant of aid by the State to an educational
institution under the management of the minority, the educational institution
H continues to be a minority educational institution. According to some, Article
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA [RUMAPAL, J.] 791

30(2) merely protects the minority's right of management of the educational A
institution and not the students who form part of such institution. Such a
reading would be contrary to Article 30(1) itself. The argument is based on
the construction of the word 'management'. 'Management' may be defined as
'the process o~ managing' and is not limited to the people managing the
institution. 20 In the context of Article 30(1) and having regard to the content
of the right, namely, the education of the minority community, the word B
'management' in Article 30(2) must be construed to mean the 'process' and
not the 'persons' in management. 'Aid' by definition means to give support
or to help or assist. It cannot be that by giving 'aid' one destroys those to
whom 'aid' is given. The obvious purpose of Article 30(2) is to forbid the
State from refusing aid to a minority educational institution merely because C
it is being run as a minority educational institution. Besides Article 30(2) is
an additional right conferred on minorities under Article 30( 1). It cannot be
construed in a manner which is destructive of or as a limitation on Article
30(1). As has been said earlier by this Court in Rev. Sidhajbhai Sabhai, 21
clause (2) of Article 30 is only another non-discriminatory clause in the
Constitution. It is a right in addition to the rights under Article 30(1) and does D
not operate to derogate from the provisions in clause (1 ). Wh~:n in decision
after decision, this ·court has held that aid in whatever form is necessary for
an educational institution to survive, it is a specious argument to say that a
minority institution can preserve its rights under Article 30( 1) by refusing aid.

I would, therefore, respectfully agree with the conclusion expressed in
E
the majority opinion that grant of aid under Article 30(2) cannot be used as
a lever to take away the rights of the minorities under Article 30( 1).

Articles 29(2) and 30(1)

•
F
Article 29(2) says that "No citizen shall be denied admission into any
educational institution maintained by the State or receiving ~id out of State
funds on grounds only of religion, race, caste, language or any of them".

It is because Article 30( 1) covers the right to admit students that there
is an apparent conflict between Article 29(2) and Article 30( 1). There are two G
ways. of considering the relationship between Article 30( 1) and Article 29(2),
the first in the context of Article 14, the second by an interpretation of Article
29(2) itself.
Concise Oxford Dictionary (I Oth Edition) 864.

Supra. H
792 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A Article 29(2) has not been expressed as a positive right. Nevertheless
in substance it confers a right on a person not to be denied admission into
an aided institution only on the basis of religion, race etc. The language of
Article 29(2) reflects the language used in other non-discriminatory Articles
in the Constitution namely, clauses (I) and (2) of Article 15 and clauses (1)
and (2) of Article 16. As already noted both the Articles contain exceptions
B which permit laws being made which make special_provisions on the basis of
sex, caste and race. Even in the absence of clauses (3} and (4) of Article 15
and clauses (3),(4) and 4(A) of Article 16, Parliament could have made special
provisions on the forbidden bases of race, caste or sex, provided that the
basis was not the only reason for creating a separate class. There would have
C to be an additional rational factor qualifying such basis to bring it within the
concept of 'equality in fact' on the principle of 'rational classification'. For
example when by law a reservation is made in favour of a member of a
backward class in the matter of appointment, the reservation is no doubt made
on the basis of caste. It is also true that to the extent of the reservation other
\

citizens·are discriminated against on one of the bases prohibited under Article
D 16(1). Nevertheless such legislation would be valid because the reservation
is not only on the basis of caste/race but because of the additional factor of
their backwardness. Clauses (3) and (4) of Article 15 like clauses 3, 4 and 4(A)
of Article 16 merely make explicit what is otherwise implicit in the concept of
equality under Article 14.
E By the same token, Article 29(2) does not create an absolute right for
citizens to be admitted into any educational institution maintained by the
State or receiving aid out of State funds. It does not prohibit the denial of
admission on grounds other than religion, race, caste or language. Therefore,
reservation of admissions on the ground of residence, occupation of parents
p or other bases has been held to be a valid classification which does· not
derogate from the principles of equality under Article 14. [See: Kumari Chitra
Ghosh v. Union ofIndia: [1969] 2 SCC 22822• Even in respect of the "prohibited"
bases, like the other non-discriminatory Articles, Article 29 (2) is constitutionally
subject to the principle of 'rational classification'. If a person is denied
admission on the basis of a constitutional right, that is not a denial only on
G the basis of religion, race etc. This is exemplified in Article 15(4) which
provides for :
"Nothing in this a11icle or in clause (2) of article 29 shall prevent the

H 21
D.N. Chanchala v. Stale of Mysore: [1971] SCR (Supp.) 608

I
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMAPAL,J.] 793

State from making any special provision for the advancement of any A
socially and educationally backward classes of citizens or for the
Scheduled Castes and the Tribes."

To the extent that legislation is enacted under Article 15 (4) making
special provision in respect of a particular caste, there is a denial of admission
to others who do not belong to that caste. Nevertheless, Article 15(4) does B
not contradict the right under Article 29(2). This is because of the use of the
word 'only' in Article 29(2). Article 15(4) is based on the rationale that
Schedule Castes and Tribes are not on par with other members of society in
the matter of education and, therefore, special provision is to_ be made for
them. It is not, therefore, only caste but this additional factor which prevents C
clause 15(4) from conflicting with Article 29(2) and Article 14.

Then again, under Article 337, grants are made available for the benefit
of the Anglo~Indian community in respect of education, provided that any
educational institution receiving s~ch grant makes available at least 40% of
the annual admissions for members of communities other than the Anglo- D
Indian community. Hence 60% of the admis·:;ion to an aided Anglo-Indian
School is constitutionally reservable for members of the Anglo-Indian
community. To the extent of such reservation, there is necessarily a denial of
admission to non-Anglo Indians on the basis of race.

Similarly, the Constitution has also carved out a further exception to E
Article 29(2) in the form of Article 30 ( 1) by recognising the rights of special
classes in the form of minorities based on language or religion to establish
and administer educational institutions of their choice. The right of the
minorities under Article 30( 1) does not operate as discrimination against other
citizens only on the ground of religion or language. The reason for such
classification is not only religion or language per se but minorities based on F
·religion and language. Although, it is not necessary to justify a classification
made by the Constitution, this fact of 'minorityship' is the obvious rationale
for making a distinction, the underlying assumption being that minorities by
their very numbers are in a politically disadvantaged situation and require
special protection at least in the field of education. G
Articles 15(4), 337 and 30 are therefore facets of substantive equality
by making special provision for special classes on special considerations.

Even on general principles of interpretation, it cannot be held that
Article 29(2) is absolute and in effect wipes out Article 30( I). Article 29(2) H
794 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A refers to 'any educational institution'- the word "any" signifying the generality
of its application. Article 30(1) on the other hand refers to 'educational
institutions established and administered by minorities'. Clearly, the right
under Article 30(1) is the more particular right and on the principle of'generalia ;
specialibus non derogant, it must be held that Article 29(2) does not override
he educational institutions even if they are aided under Article 30(1 )23 •
B
Then again Article 29(2) appears under the heading 'Protection of
.·
interests of minorities'. Whatever the historical reasons for the placement of
Article .29(2) under this head, it is clear that on general principles of
interpretation, the heading is at least a pointer or aid in construing the
C meaning of Article 29(2). As Subba Rao, J said "if there is any doubt in the
interpretation of the words in the section, the heading certainly helps us to
resolve that doubt."24 Therefore, if two interpretations of the words of ArtiCle
29(2) are possible, the one which is in keeping with the heading of the Artiole
must be preferred. It would follow that Article 29(2) must be construed in a
manner protective of minority interests and not destructive. of them.
D
When 'aid' is sought for by the minority institution to run its institution ...
for the benefit of students belonging to that particular community, the argument
on the basis of Article 29(2) is that if such an institution asks for aid it does
so at the peril of depriving ~he very persons for whom aid was asked for in
the first place. Apart from this anomalous result, if the taking of aid implies
E that the minority institution will be forced to give up or waive its right under
Article '30(1), then on the principle that it is not permissible to give up or
waive fundamental rights, such an interpretation is not possible. It has then
been urged that Article 29(2) applies to minority institutions under Article
30(1) much in the same way that A~icle 28(1) and 28(3) do. The argument
F proceeds on the assumption that an educational institution set up under
Article 30(1) is set up for the purposes and with the sole object of giving
religious instruction. The assumption is wrong. At the outset, it may also be
noted that Article 28(1) and (3) do not in tenns apply to linguistic minority
educational institutions at all. Furthermore, the right to set up an educational
institution in which religious instruction is to be imparted is a right which is
G derived from Article 26(a) which provides that every religious denomination
or any section thereof shall have the right to establish and maintain institutions

~~ Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha: [1959] SuppL I SCR 806; 860,
1939 FCR 18 .

Bhinka v. Charon Singh, AIR (1959) SC 960, 966.
H
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[RUMA PAL, J.] . 795
for religious and charitable purposes, and not under Article 30(1 ). Educational A
institutions set up under Article 26(a) are, therefore, subject to clauses (1) and
(3) of Article 28. Article 30(1) is a right additional to Article 26(a). This follows
" I
from the fact that it has been separately and expressly provided for and there
is nothing in the language of Article 30( 1) making the right thereunder subject
to Articles 25 and 26. Unless it is so construed Article 30(1) would be
rendered redundant25 • Therefore, what Article 30 does is to secure the minorities B
the additional right to give general education. Although in a particular case
a minority educational institution may combine general education with religious
instruction that is done in exercise of the rights derivable from Article 26(a)
and Article 30(1) and not under Article 30(1) alone. Clauses (1) and (3) of
Article 28, therefore, do not apply to Article 30(1). The argument in support C
of reading Article 30(1) as being subject to Article 29(2) on the analogy of
Article 28(l)and 28(3) is, I would think, erroneous.

For the reasons already stated I have held the right to admit minority
students to a minority educational institutions is an intrinsic part of Article
30(1). To say that Article 29(2) prevails over Article 30(1) would be to infringe D
and to a large extent wipe out this right. There would be no distinction
between a minority educational institution and. other institutions and the
rights under Article 30(1) would be rendered wholly inoperational. It is no
answer to say that the rights of unaided minority institutions would remain
untouched because Article 29(2) does not relate to unaided institutions at all. E
Whereas if one reads Article 29(2) as subject to Article 30(1) then effect can
be given to both. And it is the latter approach which is to be followed in the
interpretation of constitutional provisions.26 In other words, as long as the
minority educational institution is being run for the benefit of and catering
to the needs of the members of that community under Article 30(1), Article
29(2) would not apply. But once the minority educational institution travels F
beyond the needs in the sense of requirements of its own community, at that
stage it is no longer exercising rights of admission guaranteed under Article
30(1). To put it differently, when the right of admission is exercised not to meet
the need of tbe minorities, the rights of admission given under Article 30(1)
is to that extent removed and the institution is bound to admit students for
the balance in keeping with the provisions of Article 29(2). G
A simple illustration would make the position clear. 'Aid' is given to a

St. Xaviers College, [ 1975] l SCR 173, paras 7 to 12.

Sri Venkataramana Dev Aru v. State of Mysore, [1958) SCR 895, 918. H
:. l

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

A minority institution. There are 100 seats available in that institution. There are
150 eligible candidates according to the procedure evolved by the institution.
Of the 150, 60 candidates belong to that particular community and 90 to other
communities. The institution will be entitled, under Article 30(1) to admit all ...
60 minority students first and then fill the balance 40 seats from the other
communities without discrimination in keeping with Article 29(2).
B
I would, therefore, not subscribe to the view that Article 29(2) operates
to deprive aided minority institutions the right to admit members of their
community to educational institutions established and administered by them
either on any principle of interpretation or on any concept of ~quality or
C secularism.
The next task is to consider whether this interpretation of Article 29(2)
and 30( 1) is discordant with the historical context in which these Articles
came to be included in the Constitution. Before referring to the historical
context, it is necessary to keep in mind that what is being interpreted are
D constitutional provisions which "have a content and a significance that vary
from age to age''. 27 Of particular significanc~ is the content of the concept of
equality which has been developed by a process of judicial interpretation
over the years as discussed earlier. It is also necessary to be kept in mind t
that reports of the various Committees appointed by the Constituent Assembly
and speeches made in the Constituent Assembly and the record of other t
E proceedings of the Constituent Assembly are admissible, if at all, merely as
extrinsic aids to construction and do not as such bind the Court. Ultimately,
it is for this Court to say what is meant by the words of the Constitution.

The proponents of the argument that Article 29(2) over-rides Article
F 30(1) have referred to excerpts from the speeches made by members of
Constituent Assembly which have been quoted in support of their view.
Ap~ from the doubtfulness as to the admissibility of the speeches,28 in my
opinion, there is nothing in the speeches whic.h shows an intention on the
part of the Constituent Assembly to abridge in any way the special protection
afforded to minorities under Article 30( 1). The intention indicated in the
G speeches relating to the framing of Article 29(2) appears to be an extension
of the right of non-discrimination to members of the non-minority in respect
21 Cardozo: Nature of Judicial Process, p.17.

zs K.P. Verghese v. Income Tax Officer, [1982] I SCR 629, 645; Sanjeev Coke v. hltaral
Coking Coal Ltd., (1983) I SCR 1000, 1029 and P. V. Narasimha Rao, AIR (1 998) SC
H 2120. 2158 = [19981 4 sec 626
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMA PAL, J.) 797
of State aided or State maintained educational institutions. It is difficult to find A
in the speeches any unambiguous statement which points to a determination
on the part of the Constituent Assembly to curtail the special rights of the
minorities under Article 30( 1). Indeed if one scrutinises the broad historical
context and the sequence of events preceding the drafting of the Constitution
it is clear that one of the primary objectives of the Constitution was to
preserve, protect and guarantee the rights of the minorities unchanged by any B
rule or regulation that may be enacted by Parliament or any State legislature.

The history which preluded the independence of this country and the
framing of the Constitution highlights the political context in which the
Constitution was framed. and the political content of the "special" rights given C
to minorities. I do not intend to burden this judgment with a detailed reference
to the historical run-up to the Constitution as ultimately adopted by the
Constituent Assembly vis-a-vis the rights of the minorities and the importance
that was placed on enacting effective and adequate ·constitutional provisicns
· to safeguard their interests. This has been adequately done by Sikri, C.J. in
Keshavanand Bharati v. State of Kerala29 on the basis of which the learned D
Judge came to the conclusion that the rights of the minorities under the
Constitution formed part of the basic structure of the Constitution and were
un-amendable and inalienable.

I need only add that the rights of linguistic minorities assumed special
significance and support when, much after independence, the imposition of E
a 'unifying language' led not to unity but to an assertion of differences.
States were formed on linguistic bases showing the apparent paradox that
allowing for and protecting diff~rences leads to unity and integrity a~d
enforced assimilation may lead to disaffection and unrest. The recognition of
the principle of "unity in diversity" has continued to be· the hall mark of the p
Constitution - a concept which has been further strengthened by affording
further support to the protection of minorities on linguistic bases in 1956 by
way of Articles 350-A and 350-B and in 1978 by introducing clause (1-A) in
Article 30 requiring "the State, that is to say, Parliament in the case of a
a
Central legislation or State legislature in the case of State legislation, in
making a specific law to provide for the compulsory acquisition of the property G
of minority educational institutions, to ensure that the amount payable to the
educational institution for the acquisition of its property will not be such as

2'1
[1973] 4 sec 225, para 168, 178.

Society of St. Joseph's College v. Union of India, [2002] 1 SCC 273, 278 H
798 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A will in any manner impair the functioning of the educational institution". 30
Any judicial interpretation of the provisions of the Constitution whereby this
constitutional diversity is diminished would be contrary to this avowed intent
and the political considerations which underlie this intention.

The earlier decisions of this Court show that the issue of admission to
B a minority educational institution almost invariably arose in the context of the
State claiming that a minority institution had to be 'purely' one which was
established ar.d administered by members of the minority community
concerned, strictly for the members of the minority community, with the object
only of preserving of the minority religion, language, script or culture. The
C contention on the part of the executive then was that a minority institution
could not avail of the protection of Article 30(1) if there was any non-minority
element either in the establishment, administration, admission or subjects
taught. It was in that context that the Court in Kera/a Education Bill held
that a·'sprinkling of outsiders' being admitted into a minority institution did
not result in the minority institution shedding its character and ceasing to be
D a minority institution.31 It was also in that context that the Court in St. Xaviers
College (supra) came to the conclusion that a minority institution based on
religion and language had the right to establish and administer educational
institution for imparting general secular education and still not lose its minority
character. While the effort of the Executive was to retain the 'purity' of a
E minority institution and thereby to limit it, "the principle which can be discerned
in the various decisions of this Court is that the catholic approach which led
to the drafting of the provisions relating to minority rights should not be set
at naught by narrow judicial interpretation".32

The 'liberal, generous and sympathetic approach' of this Court towards
p the rights of the minorities has been somewhat reversed in the St. Stephens
case. Of course, this was the first decision of this Court which squarely dealt
with the inter-relationship of Article 29(2) and Article 30(1). None of the earlier
cited decisions did.

The decision of this Court in Champakam Dorairajan v. State of
G Madras)) cannot be construed as an authority for the proposition that Article
29(2) overrides the constitutional right guaranteed to the minorities under

p.l052.

[l975] I SCR 173, 234.

[1951] SCR 525.
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA [RUMAPAL,J.] 799
Article 30( 1), as Article 30( I) was not at all mentioned in the entire course of A
the judgment. Similarly, the Court in State of Bombay v. Bombay Education
Sociel)? 4 was not called upon to consider a situation of conflict ·between
Article 30(1) and 29(2). The Bombay Education Society, was in fact directly
concerned with Article 337 and an Anglo-Indian educational institution. In
that background, when it was suggested that Article 29(2) was intended to
benefit minorities only, the Court negatived the submission as it would amount B
to a 'double protection', "double" because an Anglo-Indian citizen would
then have not only the protection of Article 337 by way of a 60% reservation
but also the benefit of Article 29(2). It was not held by the Court that Article
29(2) would override Article 337.

There is thus no question of striking a balance between Article 29(2}
c
and 30( 1) as if they were two competing rights. Where once the Court has
held:

"Equality of opportunity for unequals can only mean aggravation of
inequality. Equality of opportunity admits discrimination with reason D
and prohibits discrimination without reason. Discrimination with
reasons means rational classifi~ation for differential tr~atment having
nexus to the constitutional permissible objects."

and where Article 29(2) is nothing more than a principle of equality, and when
"the whole object of conferring the right on minorities under Article 30 is to E
ensure that there will be equality between the majority and the minority, if the
minorities do not have such special protection they will be denied equality" ~,
3

it must follow that Article 29(2) is subject to the constitutional classification
of minorities under Article 30(1 ).

Finally, there appears be an inherent contradiction in the statement of F
the Court in St. Stephens that:

"the minority aided educational institutions are entitled to prefer t_heir
community candidates to maintain the minority character of the
institutions subject of course to conformity with the University
standard. The State may regulate the intake in this category with due G
regard to the need of the community in the area which the institution
is intended to serve. But in no case such intake shall exceed 50 per

[1955] SCR 568.

'5 Ahmedabad St. Xaviers College. H
800 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A cent of the annual admission. The minority institutions sha.IJ make
available at least 50 per cent of the annual admission to members of
communities other than the minority community. The admission of
other community candidates shall be done purely on the basis of
merit." (p.6l4)

B [ agree with the view as expressed by the Learned Chief Justice that
there is no question of fixing a percentage when the need may be variable.
· I would only add that in fixing a percentage, the Court in St. Stephens in fact
"reserved" 50% of available seats in a minority institution for the general
category ostensibly under Article 29(2). Article 29(2) pertains to the right of
C an individual and is not a class right. It would therefore apply when an
individual is denied admission into any educational institution maintained by
the State· or receiving aid from the State funds, solely on the basis of the
ground of religion, race, caste, language or any of them. It does not operate
to create a class interest or right in the sense that any educational institution
has to set apart for non-minorities as a class and without reference to any
D individual applicant, a fixed percentage of available seats. Unless Article 30( 1)
and 29 (2) are allow(:d to operate in their separate fields then what started with
the voluntary 'sprinkling' of outsiders, would become a major inundation and
a large chunk of the right of an aided minority institution to operate for the
benefit of the community it was set up to serve, would be washed away.
~·.

E Apart from this difference with the views expressed by the majority
view on the interpretation of Article 29(2) and Article 30(1 ), I am also unable
to concudn the mode of detennining the need of a minority community for
admission to an educational institution set up by such community. Whether
there has been a violation of Article 29(2) in refusing admission to a non
F minority student in a particular case must be resolved as it has been in the
past by recourse to the Courts. It must be emphasised that the right under
Article 29(2) is an individual one. If the non-minority student is otherwise
eligible for admission, the decision on the issue of refusal would depend on .
whether the minority institution is able to establish that the refusal was only
because it was satisfying the requirements of its own community under
G Article 30( I). I cannot therefore subscribe to the view expressed by the
majority that the requirement of the minority community for admission to a
minority educational institution should be left ·to the State or any other
Governmental authority to detennine. If the Executive is given the power to
detennine the requirements of the minority community in the matter of
H admission to its edtJcational institutions, we would be subjecting the minority
T.M.A. PAl FOUNDATION"· STATE OF KARNATAKA[S.N. VARIAVA,J.] 801
educational institution in question to an "intolerable encroachment" on the A
right under Article 30 ( 1) and let in by the back door as it were, what should
be denied entry altogether.

S. N. VARIAVA, J. 1. We have had the advantage of going through the
Judgment of the learned Chief Justice of India, brother Justice Khare, brother
Justice Quadri and sister Justice Ruma Pal. We are unable to agree with the B
views expressed by brother Justice Quadri and sister Justice Ruma Pal. The
learned Chief Justice has categorized the various questions into the following
categories:

(1) Is there a fundamental right to set up educational institutions
and, if so, under which provision; C
(2) Does the judgment in Unnikrishnan 's case require
reconsideration?
(3) In case of private unaided institutions can there be Government
regulations and if so to what extent? D
(4) In determining the existence of a religious or linguistic minority,
in relation to Article 30, what is to be the unit, the State or
Country as a whole; and
(5) To what extent the rights of aided minority institutions to
administer be regulated. E
2. Justice Khare has dealt with categories 4 and 5 above. On other
aspects he has agreed with the learned Chief Justice.

3. We are in agreement with the reasoning and conclusions of the
learned Chief Justice on categories 1 and 4. In respect of category 2 we agree F
with the learned Chief Justice that the cost incurred on educating a student
in an unaided professional college was more than the total fee which is
' realized on the basis of the fonnula fixed in the scheme. This had resulted in
revenue shortfalls. As pointed out by the learned Chief Justice even though
by a subsequent decision (to Unni Krishnan's) this Court had permitted some
percentage of seats within the payment seats to be allotted to Non-Resident G
Indians, against payment of a higher amount as determined by the authorities,
sufficient funds were still not available for the development of those educational
institutions. As pointed out by the learned Chief Justice experience has
shown that most of the "free seats" were occupied by students from affluent
families, while students from less affluent families were required to pay much H
802 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A more to secure admission to "payment seats". As pointed out by the learned
Chief Justice the reason for this was that students from affluent families had
had better school education and the benefit'bfprofessional coaching facilities
and were, therefore, able to secure higher merit positions in the common
entrance test, and thereby secured the free seats. The education of these
more affluent students was in a way being cross-subsidized by the financially
B poorer students who, because of their lower position in the merit Jist, could
secure only "payment seats". Thus we agree with the conclusion of the
learned Chief Justice that the scheme cannot be considered to be a reasonable
restriction and requires re-consideration and that the regulations must be
minimum. However we cannot lose sight of the ground realities in our country.
C The majority of our population come from the poorer section of our society.
They cannot and will not be able to afford the fees which will now be fixed
pursuant to the judgment. There must therefore be an attempt, not just on the
part of the Government and the State, but also by the educational institutions
to ensure that students from the poorer section of society get admission. One
method would be by making available scholarships or free seats. If the
D educational institution is willing to provide free seats then the costs of such
free seats could also be partly covered by the fees which are now to be fixed.
Ther~ should be no harm in the rich subsidising the poor.

4. The learned Chi"ef Justice has repeatedly emphasised that 'capitation
E fees cannot be charged and that there must be no profiteering. We clarify that
the concerned authorities will always be entitled to prevent by enactment or
by regulations the charging of exhorbitant fees or capitation fees. There are
many such enactments already in force. We have not gone into the validity
or otherwise of any such enactment. No arguments regarding the validity of
any such enactment have been submitted before us. Thus those enactments
F will not be deemed to have been set aside by this Judgment. Of course now
by virtue of this Judgment the fee structure, fixed under any regulation or
enactment, will have to be reworked so as to enable educational .institutions
not only to break even but also to generate some surplus for future
development/expansion and to provide for free seats.

G 5. We also wish to emphasis, what has already been stated by the
learned Chief Justice, that an educational institution must grant admission on
some identifiable and acceptable manner. It is only in exceptional cases, that
the management may refuse admission to a student. However such refusal
must not be whimsical or for extraneous reasons meaning thereby that the
H refusal must be based on some cogent and justifiable reasons.
T.M.A. PAl FOUNDATIONv. STATE OF KARNATAKA[S.N. VARIAVA,J.} 803
6. In respect of categories 3 and 5 we wish to 'point out that this Court A
has been constantly taking the view that these aided educational institutions
(whether majority or minority) should not have unfettered freedom in the
matter of administration and management. The State which gives aid to
' t
educational institution including minority educational institution can impose
such conditions as are necessary for the proper maintenance for the higher B
standards of education. State is also under an obligation to protect the
interests of the teaching and non-teaching staff. in many States, th~re are
various statutory provisions to regulate the functioning of these educational
institutions. Every educational institution should have basic amenities. If it
is a school, it should have healthy surroundings for proper education; it
should have a playground, a laboratory, a library and other requisite facilities C
that are necessary for a proper functioning of the school. The teachers w~o
are working in the schools should be governed by proper service conditions.
In States where the entire pay and allowances for the teaching staff and non-
teaching staff are paid by the State, the State has got ample power to regulate
the method of selection and appointment of teachers. State can also prescribe
qualifications for the teachers to be appointed in such schools. Similarly in D
unaided schools, State sometimes provides aid for some of the teachers only
while denying the aid to other teachers. Sometimes the State does not provide
aid for the non-teaching staff. The State could, when granting aid, provides
for the age and qualifications for recruitment of a teacher, the age of retirement
and even for the manner in which an enquiry has to be held by the institution. E
In other words there could be regulations which ensure that service conditions
for teachers and staff receiving aid of the State and the teachers or the staff
for which no aid is being provided are the same. Pre-requisite to attract good
teachers is to have good service conditions. To bring about an uniformity in
the service conditions State should be put at liberty to prescribe the same F
without intervening in the process of selection of the teachers or their removal,
dismissal etc. We agree that there need not be either prior and subsequent
approval from any functionaries of the State/University/Board (as the case
may be) for disciplinary action, removal or dismissal. However principles of
natural justice must be observed and as already provided, by the learned
Chief Justice all such action can be scrutinised by the Education Tribunal. G
The provisions contained in the various enactments are not specially challenged
before us. The constitutional validity of the statutory provisions vis-a-vis the
rights under Articles 19( I )(g), Article 26, Article 29 and Article 30( I) of the
Constitution can be examined only if a specific case is brought before the
Court. Educational Institutions receiving State aid cannot claim to have H
804 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

· A complete autonomy in the matter of administration. They are bound by various
statutory provisions which are enacted to protect the interests of the education~
students and teachers. Many of the Statutes were enacted long back and·
stood the test of time. Nobody has ever challenged the provisions of these
enactments. The regulations made by the State, to a great extent, depend on
B the extent of the aid given to institutions including minority institutions. In
some States, a lumpsum amount is paid as grant for maintenance of schools.
In such cases, the State may not be within its rights to impose various
restrictions, specially regarding selection and appointment of teachers. But in
some . States the entire salary of the teaching and non-teaching staff are paid,
and'these employees are given pension and other benefits, the State may then
C have a right and an obligation to see that the selection and appointment of
teachers are properly made. Similarly the State could impose conditions to the
effe~t that in the matter of appointments, preference shall be given to weaker
sections of the community, specially physically handicapped or depe~dents
of employees who died in harness. All such regulations may not be said to
be bad and/or invalid and may not even amount to infringing the rights of
D the 'minority t::onferred under Article 30(1) of the Constitution. Statutory
provisions such as labour laws and welfare legislations etc. would be applicable
to minority educational institutions. As this decision is being rendered by a
larger bench consisting of eleven judges, we fe.el that it is not advisaqle and
we should not be taken to have laid down extensive guidelines in respect of
E myriads of legal questions that may arise for consideration. In our view in this
case rthe battlelines were not drawn up in the correct perspective and' many
of the aggrieved or affected parties were not before us.
:~ ~

:, 7. As regards category 5, we agree with the conclusions of both the
F learned Chief Justice as well as Justice Khare that Article 29(2) applies to
Article 30. However~ we are unable to agree with the final reasoning that there \•

must be a balancing between Articles 29(2) and 30(1). We, therefore, give our
. reasons for dis-agreeing with the final conclusion that there must be a balancing
betWeen Articles 29(2} and 30.
,J
G 8. We are conscious of the fact that the learned Chief Justice and
Justice Khare have exhaustively dealt with the authorities. However in our
view there is need to emphasise the same. We are here called upon to interpret
Articles 29(2) and 30. Submissions have been made that in interpreting these
Articles the historical background must be kept in mind and that a contextual
H approach should be taken. We must! therefore, a) look at the history which
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA£S.N. VARIA VA, J.) 805
led to incorporation of these Articles. The intention of the framers will then A .
disclose how the contextual approach must be based; b) apply the well settled
principles of interpretation; and c) keep the doctrine of "Stare Decisis" in
mind.

9. In the case of Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC
225, it has been held that in interpreting the provisions of a Statute or the B
Constitution it is the duty of the Court to find out the legislative intent. It
has been held that Constituent Assembly debates are not conclusive but that,
in a Constitutional matter where the intent of the framers of the Constitution
is to be ascertained, the Court should look into the proceedings and the
relevant data, including the speeches, which throw light on ascertaining the C
intent. In considering the nature and extent of rights conferred on minorities
one must keep in mind the historical background and see how and for what
purpose Article 30 was framed.

10. In the case of R.S. Nayak v. A.R. Antulay, reported in AIR (1984)
SC 684 at page 686, it has been held as follows: D
"Reports of the Committee which preceded the enactment of a
legislation, reports of Joint Parliament Committee, report of a
Commission set up for collecting information leading to the enactment
are permissible external aid to construction. If the basic purpose
underlying construction of legislation is to ascertain the real intention E
of the Parliament, why should the aids which Parliament availed of
such as report of a Specia.l Committee preceding the enactment, existing
state of Law, the environment necessitating enactment of legislation,
and the object sought to be achieved, be denied to Court whose
function is primarily to give effect to the real intention of the Parliament F
in enacting the legislation. Such denial would deprive the Court of a
substantial and illuminating aid to construction.

The modern approach has to a considerable extent eroded the
exclusionary rule even in England."
G
II. The partition of India caused great anguish, pain, bitterness and
distrust amongst the various communities residing in India. Initially there was
a demand for separate electorate and reservation of seats. However the
principle of unity and equality for all prevailed. In return it was agreed that
minorities would be given special protections.
H
806 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 12. The reason why Article 30( 1) was embodied in the Constitution has
been set out by Chief Justice Ray (as he then was) in the case of St. Xaviers
College v. State ofGujarat, reported in [1975]1 SCR 173. The relevant portion
reads as follows:

"The right to establish and administer educational institutions of their
B ,choice has been conferred on religious and linguistic minorities so
.that the m9}ority who can always have their rights by having prop~r
legislation do not pass a legislation prohibiting minorities to
establish and administer educational institutiqns of their choice,

XXX
c
XXX XXX

Every section of the public, the majority as well as minority has
rights in respect of religion as contemplated in Articles 25 and 26 and
rights in respect of language, script, culture as contemplated in Article
D 29. The whole object of conferring the right on minorities under
Article 30 is to ensure that there will be equality between the majority
' and the minority. If the minorities do not have such special protection
they will be denied equality. ., .

XXX XXX
E
XXX XXX

The real reason embodied in Article 30(1) of the Constitution is the
p conscience of the nation that the minorities, religious as well as linguistic, are
not prohibited from establishing and administering educational institutions ·~f ...
their choice for the purpose of giving their children the best general education
to make them complete men and women of the country. The minorities are
given this protection under Article 30 in order .to preserve and strengthen the
integrity and unity of the country. The sphere of general secular education
G is intended to develop the commonness ofboys and girls ofour country. This
is in the true spirit of liberty, equality and fraternity through the medium
of education. If religious or linguistic minorities are not given protection
under Article 30 to establish and administer educational institutions of their
choice, they will feel isolated and separate. General secular education will
H open doors of perception and act as the natural light of mind for our countrymen
T.M.A._PAI FOUNDATION"· STATE OF KARNATAKA [S N. VARIAVA,J.] 807
·to live in the whole." (emphasis supplied) A
In the same Judgment, Justice Khanna has held as follows:

"Before we deal with the contentions advanced before us and the
scope and ambit of article 30 of the Constitution, it may be pertinent
to refer to the historical background. India is the second most populous B
country of the world. The people inhabiting this vast land profess
differenneligions and speak different languages. Despite the diversity
of religion and language, there runs through the fabric of the nation
the golden thread of a basic innate unity. It is a mosaic of different
religions, languages and cultures. Each of them has made a mark on
the Indian polity and India today represents a synthesis of them all. C
The closing years of the British rule were marked by communal riots
and dissentions. There was also a feeling of distrust and the demand
... was made by a section of the Muslims for a separate homeland. This
· ultimately resulted in the partition of the country. Those who led the
fight for independence in India always laid great stress on communal D
amity and accord They wanted the establishment of a secular State
wherein people belonging to the different religions should all have
a feeling of equality and non-discrimination. Demand had also been
made before the partition by sections of people belonging to the
minorities for reservation of seats and separate electorates. In order
to bring about integration and fusion of the different sections of the E
population, the framers of the Constitution did away with separate
electorates and introduced the· system of joint electorates, so that
every candidate in an election should have to look for support of all
sections of the citizens. Special safeguards were guaranteed for the
minorities aud they were made a part of the fundamental rights with p
a view to instil a sense of confidence and security in the minorities.
Those provisions were a kind of a Charter of rights for the minorities
so that none might have the feeling that any section of the population
consisted of.first-class citizens and the others ofsecond·class citizens."
(emphasis supplied) G

13. This was the basis on which minority rights were guaranteed. The
rights were created so that minorities need have no apprehension that they
would not be able, either in the religious or in the educational fields, to do
what the politically powerful majority could do. In matters of education what
the politically powerful majority could do was to establish and administer H
808 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A educational institutions of their choice at their own expense. Principles of
equality required that the minorities be given the same rights. The protection/
special right was to ensure that the minorities could also establish and
1

administer educational institutions of their choice at their own expense. The
demand for separatism and separate electorates was given up as principles
of secularism and equality were considered more important. The-principle of ·
B secula~ism and equality meant that State would not discriminate on grounds
of religion, race, caste, language or any of them. Thus once State aid was
given and/or taken then, whether majority or minority, all had to adhere to
principles of equality and secularism. There never was any intention or desire
to create a special or privileged class of citizens.
c 14. With this background, it is necessary to see how Articles 29 and
30 came to be framed/incorporated in the Constitution. Mr. Munshi was a
strong advocate for minority rights. Mr. Munshi sent to the Advisory
Committee a Note with which he forwarded a draft Constitution. This draft
.
Constitution clearly indicates what rights were contemplated in framing, what
D is now, Article 30(1). Draft Article VI read as follows:
......
"The Right to Religious and Cultural Freedom
i
(1) All citizens are equally entitled to freedom of conscience and to
the right freely to profess and practise religion in a manner compatible
E with public .order, morality or health :

Provided that the economic, financial or political acttvttJes
associated with religious worship shall not be deemed to be included
1
in the right to profess or practise religion.

F (2) All citizens are entitled to cultural freedom, to the use of their
mother tongue and the script thereof, and to adopt, study or use any
other language and script of their choice.

(3) Citizens belonging to national minoritie~ in a State whether based
on religion or language have equal rights with other citizens in fonning.
G controlling and administering at their own expense, charitable, religious
.•. and social institutions, schools and other educational establishments
with the free use of their language and practice of their religion.
(emphasis supplied) (4) No person may be compelled to pay taxes the...-
j proceeds of which are specifically appropriated in payment of religious
requirements of any community of which he is not a member.
H
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA[S.N. VARIAVA,J.J 809
(5) Religious instruction shall not be compulsory for a member of a A • ·
community which does not profess such religion.

(6) No person under the age of eighteen shall be free to change his
religious persuasion without the perm iss ion of his parent or guardian.

(7) Conversion from one religion to another brought about by coercion, B
undue influence or the offering of material inducement is prohibited
and is punishable by the law of the Union.

(8) It shall
I
be the duty of every unit to provide, in the public educational
system in towns and districts in which a considerable proportion of
citizens of other than the language of the unit are residents, adequate C
facilities for ensuring that in the primary schools the instruction shall
be given to the children of such citizens through the medium of their
. own language.

Nothing in this clause shall be deemed to prevent the unit from
making the teaching of the national language in the variant and script D
of the choice of the pupil obligatory in the schools.

(9) No legislation providing State-aid for schools shall discriminate
against schools under the management of minorities whether based
on religion or language. Every monument of artistic or historic interest
or place of natural interest throughout the Union is guaranteed E
immunity from spoliation, destruction, removal, disposal or export
except under a law of the Union, and shall be preserved and maintained
according to the law or the Union."

This shows that the intention was to give to the minorities the right to form,
control and administer, amongst others educational institutions, at their own F
expense. It_ is also to be noted that Article (9) is similar. to what is now Article
30(2). As the educational institutions were to be at their own expense, State
aid was not made compulsory.

15. At this stage it must be remembered that the minorities to whom
rights were being given, were not minorities who were socially and/or G
economically backward. There was no fear that economically, these religious
or linguistic minorities, would not be able to establish and administer
educational institution. There was also no fear that, in educational institutions
established for the benefit of all citizens, the children of these religious or
linguistic minorities would not be able to compete. These rights were being H
810 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A conferred only to ensure that the majority, who due to their numbers would
be politically powerful, did not prevent the minorities from establishing and
administering their own educational institutions. rn so providing, the basic
l .,
feature of'the Constitution, namely, secularism and equality for all citizens,
whether majority or minority was being kept in mind.

B 16. In this behalf, an extract from Kesavananda's case is very relevant.
It reads as follows:

,. "It may be recalled that as regards the minorities the Cabinet Mission
\

had recognised in their report to the British Cabinet on May 6, 1946,
,only three main communities: general, Muslims and Sikhs. General
c community included all those who were non-Muslims or non-Sikhs.
, The Mission had recommended an Advisory Committee to be set up
by the Constituent Assembly which was to frame the rights of citizens, ...
minorities, tribals and excluded areas. The Cabinet Mission statement
· had actually provided for the cession of sovereignty to the Indian
D people subject only to two matters which were: (I) willingness to
conclude a treaty with His Majesty's Government to cover matters
arising out of transfer of power and (2) adequate provisions for the
·protection of the minorities . Pursuant to the above and Paras 5 and
6 of the Objectives Resolution the Constituent Assembly set up an
Advisory Committee on January 24, 1947. The Committee was to
E consist of representatives of muslims, the depressed classes or the
, scheduled castes, the Sikhs, Christians, Parsis, Anglo-Indians, tribals
and excluded areas besides the Hindus. As a historical fact it is safe
to say that at .a meeting held on May II, 1949, a resolution for the
.abolition of all reservations for minorities other than the scheduled
castes found whole-hearted support from an overwhelming majority
F
of the members of the Advisory Committee. So far as the scheduled
castes were concerned it was felt that their peculiar position would
necessitate special reservation for them for a period of ten years. It
would not be wrong to say that the separate representation of
minorities which had been the feature of the previous Constitutions
G . and which had witnesses so much of communal tension and strife
. was given up in favour of joint electorates in consideration of the
guarantee offundamental rights and minorities' rights which it was
·• decided to incorporate intc the new Constitution. The Objectives
• Resolution can be taken into account as a historical fact which moulded
H its nature and character. Since the language of the Preamble was taken

·.-... :·.
T.M.A. PAl FOUNDATION~·. STATE OF KARNATAKA[S.N. VARIAVA,J.] 81]

from the resolution itself the declaration in the Preamble that India A
would be a Sovereign Democratic Republic which would secure to all
its citizens justice, liberty and equality was implemented in Parts Ill
and IV and other provisions of Constitution. These formed not only
the essential features of the Constitution but also the fundamental
conditions upon and the basis on which the various groups and
interests adopted the Constitution as the Preamble hoped to create B
one unified integrated community. (emphasis supplied)"

17. The draft Articles were then forwarded by the Advisory Committee
to a Committee for fundamental rights. They were also forwarded to another
Committee known as the Committee of Minorities. These two Committees
thereafter revised the draft and the revised draft was then forwarded to the C
Constituent Assembly for discussion. The relevant portion of the revised
draft read as follows:

"Rights relating to Religion

13. All persons are equally entitled to freedom of conscience, and the D
right freely to profess: practise and propagate religion subject to
public order, morality or health, and to the other provisions of this
Part.
Explanation 1. - The wearing the carrying of kirpans shall be
deemed to be included in the profession of the Sikh religion.
- '
E
Explanation 2. - The above rights shall not include any economic,
financial, political or other secular activities that may be associated
with religious practice.
Explanation 3. - The freedom of religious practice guaranteed in p
this clause shall not debar the State from enacting laws for the purpose
of social welfare and reform and for throwing open Hindu religious
institutions of a public character to any class or section of Hindus.
14. Every religious denomination or a section thereof shall have
the right to manage its own affairs in matters of religion and, subject G
to law, to own, acquire and administer property, movable and
immovable, and to establish and maintain institutions for religious or
charitable purposes.
-
.
15. No person may be compelled to pay taxes, the proceeds of.
which are specifically appropriated to further or maintain any particular H
812 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A religion or denomination.

16. No person attending any school maintained or receiving aid
out of public funds shall be compelled to take part in the religious
inStruction that may be given in the school or to attend religious
worship held in the school or in premises attached thereto.
B 17. Conversion from one rei igion to another brought about by
.coercion or undue influence shall not be recognised by law.

Cultural and Educational Rights

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

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

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

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

Thus under Clause 18(3)(a) minorities based on religion, community and
language were to be free to establish and administer educational institutions.
F The Constituent Assembly Debates, of 30th August, 1947, indicate that it was
understood and clear that the right to establish and administer educational
institutions was to be at their own expense. During the Debate on 30th
August, 1947, Mr. K.T.M. Ahmed Ibrahim Sahib Bahadur proposed an
amendment in Clause 18(2). The suggested amendment read as follows:
G · "Provided that this clause does not apply to state Educational
institutions maintained main Jy for the benefit of any particular
community or section of the people.''

18. Similarly Mrs. Purnima Banerji proposed an amendment to the effect
H that under Clause 18(2) after the words "State" the words "and State·aided"
T.M.A. PAl FOUNDATJONv. STATE.OF KARNATAKA [S.N. VARIA VA, J.) 813

be ins.:rted. To be noted that both Mr. K.T.M. Ahmed and Mrs. Purnima A
Banerji were, by their proposed amendments, seeking to enhance rights of
minorities. The discussions which follow these proposed amendments are
very illustrative and informative. These discussions read as follows:

"Mrs. Pumima Banerji: Sir, my amendment is to clause I8(2)." It reads
as follows:- B
"That after the word 'State', the words 'and State-aided' be inserted."

The purpose of the amendment is that no minority, whether based
on community or religion shall be discriminated against in regard to
the admission into State-aided and State educational institutions. Many C
of the provinces, e.g., U.P., have passed resolutions laying down that
no educational institution will forbid the entry of any members of any
community merely on the ground that they happened to belong to a
particular community - even if that institution is maintained by a
donor who has specified that that institution should only cater for
members of his particular community. If that institution seeks State D
aid, it must allow members of other communities to enter into it. In the
olden days, in the Anglo-Indian schools (it was laid down that,
though those school were specifically intended for Anglo-Indians, 10
per cent of the seats should be given to Indians. In the latest report
adopted by this House, it is laid down at 40 per cent. I suggest Sir, E
that if this 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 retract 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 principle has been laid down that, if any F
institution receives State aid, it cannot discriminate or refuse
admission to members of other communities, then it should be
followed. We know, Sir, that many a Province has got provincial
feelings. If this provision is included as a fundamental right, I suggest
that it will be highly detrimental. The Honourable Mover has not told G
us what was the reason why he 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) H
814 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Even though Mrs. Purnima Banerji is seeking to give further protection
to students of minority community, her speech indicates the principle, accepted
by all, that if an institute receives State aid it cannot discriminate or refuse
admission to members of other communities. The reply of Mr. Munshi is as
follows:•

B Mr. K. M Munshi: Mr. President, Sir, the scope of this clause 18(2)
is only restricted to this, that where the State has got an educational
institution of i~s own, no minority shall be discriminated against. Now,
this does recognise to some extent the principle that the State cannot
-.own an institution from which a minority is excluded. As a matter of
c fact, this to some extent embodies the converse. proposition over
which discussion took place on clause 16, namely no minority shall
be excluded from any school maintained by the State. That being so,
it secures the purpose which members discussed a few minutes ago.
· This is the farthest limit to which I think, a fundamental right can go.

D Regarding Ibrahim Sahib's amendment, I consi~er that it practically
destroys the whole meaning and content of this fundamental right.
This minority right is intended to prevent majority control legislatures
. from favouring their own community to the exclusion of other
communities. The questiort therefore is : Is it suggested that the State
should be at liberty to endow schools for minorities? Then it will
E come to this that the minority will be a favoured section of the
public. This destroys the very basis of a fundamental right. I submit
that it should be rejected. (emphasis supplied)

XXX

F Then comes Mrs. Banerji's amendment. It is wider than the clause
itself. As I pointed out, clauses 16 to 18 are really two different
propositions. This is with regard to communities. Through the medium
of a fundamental right, not by legislation, not by administrative action
this amendment seeks to close down thousands of institutions in this
country.
G
I can mention one thing in so far as my province is concerned
there are several hundreds of Hindu Schools and several dozens of
Muslim Schools. Many of them are run by charities which are
exclusively Hindu or Muslim. Still the educational policy of the State
du•·ing the Congress regime has been that as far as possible no
H
T.M.A. PAl FOUNDATION''· STATEOFKARNATAKA[S.N. VARIAVA,J.] 815
discrimination should be permitted against any pupil by administrative A
action in these schools. Whenever a case of discrimination is found,
the Educational Inspector goes into it; particularly with regard to
Harijans it has been drastically done in the Province of Bombay. Now
if you have a fundamental right like this, aschool which has got a
thousand students and receives Rs. 500 by way of grant from
Government, becomes a State aided School. A trust intended for one B
community maintains the School and out of Rs. 50,000 spent for the
School Rs. 500 only comes from Government as grant. But immediately
the Supreme Court must hold that this right comes into operation as
regards this School. Now this, as I said, can best be done by legislation
in the provinces, through the administrative action of the Government C
which takes into consideration susceptibilities and sometimes makes
allowances for certain conditions. How can you have a Fundamental
law about this? How can you divert crores of rupees of trust for some
other purpose by a stroke of the pen? The idea seems to be that by
placing these two lines in the constitution everything in this country D
has to be changed without even consulting the people or without
even allowing the legislatures to consider it. I submit that looking into
the present conditions it is much better that these things should be
done by the nonnal process of educating the people rather than by
putting in a Fundamental Right. This clause is intended to be restrictive
that neither the Federation nor a unit shall maintain an institution from E
which minorities are excluded. If we achieve this, this will be a very
great advance that we would have made and the House should be
content with this much advance.''

Thus to be seen that Mr. Munshi echoed the sentiment so often expressed
by Counsel before us i.e. that by securing a small amount of aid, the right F
to administer educational institutions cannot be given up. This was immediately
answered as follows:

"Mr. Hussain Imam : I will not take more than two minutes of the time
of the House. I think there is nothing wrong with the amendment G
which has been moved by Mrs. Banerji. She neither wants those
endowed institutions to be closed, nor their funds to be diverted to
purposes for which they were not intended. What she does ask is that
the State being a secular State, must not be a party to exclusion. It
is open to the institutions which want to restrict admission to
particular communities or particular classes, to refuse State aid and H
816 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A thereby, after they have refused the State aid, they are free to restrict
their admission of the students to any class they like. The State will
have no say in the matter. Here the word 'recognize' has not been put
in. In clause 16 we put the all embracing word 'recognize'. Therefore I ..
all this trouble arose that we had to refer that to a small Committee.
In this clause the position is very clear. And Mr. Munshi, as a clever
B lawyer, has tried to cloud this. It is open to the institution which has
spent Rs. 40,000 from its funds not to receiveRs. 500 as grant from
the State but it will be open to the State to declare that as a matter
of State policy exclusiveness must not be accepted and this would
apply equally to the majority institutions as well as minority
c institutions. No institution receiving State aid should close its door
t~ any other class ofpersons in India merely because its donor has
originally so desired to restrict. They are open to refuse the State aid
and they can have any restriction they like. (emphasis supplied)
)00( XXX )00(

D
.. Pandit Hirday Nath Kunzru: Mr. President, I support the· amendment
moved by Mrs. Banerji. I followed with great interest Mr. Munshi's
exposition. His view was that if we accepted the principle that
educational institutions maintained by the State shall be bound to
admit boys of all communities, it would be a great gain and that we
E should not mix up this matter with other matters howsoever important
they may be. I appreciate his view point. Nevertheless I think that it
is desirable in view of the importance that we have attached to
various provisions accepted by us regarding the development of a
~ feeling of unity in the country .that we should today accept the

F principle that a boy shall be at liberty to join any school whether
maintained by the State or by any private agency which receives aid
from State funds. No school should be allowed to refuse to admit a
boy on the score of his religion. This does not mean, Sir, as Mr.
Munshi seems to think, that the Headmaster of any school would be
t
under a compulsion to admit any specified number of boys belonging
G to any particular community. Take for instance an lslamia School. If
200 Hindu boys offer themselves for admission to that School, the
Headmaster will be under no obligation to admit all of them. But the
boys will not be debarred, from seeking admission to it simply because
they happen to be Hindus. The Headmaster will lay down certain
H principles in order to determine which boys should be admitted.

. ~ ... ..
T.M.A.PAI FOUNDATJON1-·. STATE OF KARNATAKA(S.N. VARIA VA, J.] 817
XXX A
Sir, we have decided not to allow separate representation in
order to create a feeling of oneness throughout the country. We have
even disallowed cumulative voting because, as Sardar Vallabhbhai
Patel truly stated the other day, its acceptance would mean introduction
by the backdoor of the dangerous principle of communal electorates B
which we threw out of the front door. So great being the importance
that we attach to the development of a feeling of nationalism, is it
not desirable and it is not necessary that our educational institutions
which are maintained or aided by the State should not cater
exclusively for boys belonging to any particular religion or C
community? If it is desirable in the case of adults that a feeling of
unity should be created, is it not much more desirable where immature
children and boys are concerned that no principle should be accepted
which would allow the dissemination, directly or indirectly, of anti-
national ideas or feelings?

Sir, since the future welfare of every State depends on education,
D
it is I think very important that we should today firmly lay down the
principle that a school, even though it may be a private school,
should be open to the children of all communities if it receives aid
from Government. This principle will be in accordance with the
decisions that we have arrived at on other matters so far. Its non- E
acceptance will be in conflict with the general view regarding the
necessity of unity which we have repeatedly and emphatically
expressed in this House. (emphasis supplied)

These discussions clearly indicate that the main emphasis was on unity and
equality. The protection which was being given to the minorities was merely F
to ensure that the politically strong majority did not prevent the minorities
from having educational institutions at their own expense. It is clear that the
framers always intended that the principles of secularism and equality were
to prevail over even minorities' rights. If the State aid was taken then there
could be no discrimination or refusal to admit members of other communities. G
On this basis the amendments moved.by Mr. K.T.M. Ahmed Ibrahim Sahib
Bahadur and Mrs. Purnima Banerji (which sought to create additional rights
in favour of minorities) were rejected.

19. The draft was then sent back to the Committee. When it cam.e back
to the Constituent Assembly the relevant Articles read as follows: H
818 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A ' "22. (1) No religious instruction shall be provided by the State in
a.~Y educational institution wholly maintained out of State funds:

Provided that nothing in this clause shall apply to an educational
~·
institution which is administered by the State but has been established
under any endowment or trust which requires that religious instruction
B shall be imparted in such institution.

:· (2) No person attending any educational institution recognised by
the State or receiving aid out of State funds shaH be required to 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
C )nstitution or in any premises attached thereto unless ·such person, or
. if such person is a minor, his guardian .has given his consent thereto.
1
· (3) Nothing in this article shall prevent any community or
denomination from providing religious instruction for pupils of that
community or denomination in an educational institution outside its
D 1working hours.
(

Cultural and educational rights

23. (I) Any section of the citizens residing in the territory of India
, or any part thereof having a distinct language, script and culture of
E ' 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 by the State.
F -~• (3)(a) All minorities whether based on religion, community or
r language shall have the right to establish and administer educational
·'li institutions of their choice.
(b) The State shall not, in granting aid to educational institutions,
J
' · discriminate against any educational institution on the ground that it
G is under the management of a minority, whether based on religion,
• community or language.
1

20. These were discussed in the Constituent Assembly on 7th and 8th
December, 1948. It must be noted that there was a practice to circulate in
H advance, any proposed amendment, which a Member desired to move. The
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA [S.N. VARIAVA,J.] 819
proposed amendment was circulated in advance for sound reasons, namely A
that every body else would have notice of it and be prepared to express views
for or against the proposed amendment. On 7th December, 1948 Clause 22 was
being considered. Mr. H. V. Kamath proposed as follows:

"Shri H. V. Kamath (C.P. and Berar: General): Mr. Vice President, I
move· B
"That in clause (2) of article 22, the words "recognised by the State
or" be deleted."

I move this amendment with a view to obtaining some clarification
on certain dark corners of these two articles· articles 22 and 23. I hope C
that my learned Friend Dr. Ambedkar will not, in his reply, merely toe
the line of least resistance and say "I oppose this amendment", but
will be good enough to give some reasons why he opposes or rejects -
my amendment, and I hope he will try his best to throw some light
on the obscure corners of this article. If we scan the various clauses
of this article carefully and turn a sidelong glance at the next articles D
too, we will find that there are some inconsistencies or at least an
inconsistency.· Clause ( 1) of article 22 imposes an absolute ban on
religious instruction in institutions which are wholly maintained out
of State funds. The proviso, however, excludes such institutions as
are administered by the State which have been established under an E
endowment or trust • that is, under the proviso those institutions
which have been established under an endowment or trust and which
require, under the conditions of the trust, that religious instruction ·
must be provided in those institutions, about those, when the State
administers then, there will not be any objection to religious instruction.
Clause (2) lays down that no person attending an institution recognised F
by the State or receiving aid out of State funds shall be required to
take part in religious instruction. That means, it would not be
compulsory. I am afraid I will have to turn to clause 23, sub·clause
.. (3)(a) where it is said that all minorities, whether based on religion,
community or language, shall have the right to establish and administer G
educational institutions of their choice. Now, is it intended that the
institutions referred to in the subsequent clause which minorities may
establish and conduct and administer according to their own choice,
is it intended that in these institutions the minorities would not be
allowe~ to provide religious instruction? There may be institutions
established by minorities, which insist on students' attendance at H
820 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

~A religious classes in those institutions and which are otherwise
unobjectionable. There is no point about State aid, but I cannot
certainly understand why the State should refuse recognition to those
institutions established by minorities where they insist on compulsory
attendance at religious classes. Such interference by the State I feel
is unjustified and unnecessary. Besides,. this conflicts with the next
B article to a certain extent. If minorities have the right to establish and
administer educational institutions of their own choice, is it contended
by the Honourable Dr. Ambedkar that the State will say "You can have
institutions, but you should not have religious instructions in them
if you want our recognition.' Really it beats me how you can reconcile
c these two points of view in articles 22 and 23. The minority, as I have
already said, may establish such a school or its own pupils and make
religious instruction compulsory in that'school. If you do not recognjse
that institution, then certainly that school will not prosper and it will
fail at attract pupils. Moreove.r, we have guaranteed certain rights to
the minorities and, it may be in a Christian school, they may teach the
D pupils the Bible and in a Muslim school the Koran. If the minorities,
Christians and Muslims, can administer those: institutions according
to their choice and manner, does the House mean t~ suggest that the
State shall not recognize such institutions? Sir, to my mind, if you
pursue such a course, the promises we have made to the minorities
E in our country, the promises we have made to the ear we shall have
broken to the heart. Therefore I do not see any point why, in
institutions that are maintained and conducted and administered by
the minorities for pupils of their own community the State should
refuse to grant recognition, in case religious instruction is compulsory.
. . When once you have allowed them to establish schools according to
F ' their choice, it is inconsistent. that you should refuse recognition to
them on that ground. I hope something will be done to rectify this
inconsistency."

Thus it is to be seen that Shri H. V. Kamath is referring not just to draft Article
•
22 but also to draft Article 23(3)(a). He is pointing out that there is an
G apparent conflict between these two Articles. Draft Articles 22 and 23(3)(a)
are, with minor changes, what are now Articles 28(3) and 30(1.), Dr. Ambedkar
-'
opposed the amendments proposed by Shri H.V. Kamath for various reasons,
one of which is as follows:

H "We have accepted the proposition which is embodied in article 21,
T.M.A. PAl FOUNOATIONv. STATEOFKARNATAKA{S.N. VARIAVA,J.] 821
that public funds raised by taxes shall not be utilised for the benefit A
of any particular community."

21. Shri H. V. Kamath then asked for a clarification as follows:
• I

"On a point of clarification, what about institutions_ and schools run
by a community or a minority for its own pupils - not a school where B
all communities are mixed but a school run by the community for its
own pupils?"

22. Thus Shri H.V. Kamath is again emphasising that there could be
minority educational institutions .run for their own pupils. The answer to this,
by Dr. Ambedkar, is as follows: C
The Honourable Dr. B.R. Ambedkar: If my Friend Mr. Kamath will read
the other article he will see that once an institution, whether maintained by
the community or not, gets a grant, the condition is that it shall keep the
school open to all communities. That provision he has not read." (emphasis
supplied) D
23. To be noted that in the draft Articles there is no clause which
provides that if an institution, whether maintained by the community or not,
gets a grant, it shall keep the school open to all communities. The next clause
which Dr. Ambedkar referred to, was the proposed amendment moved by
Pandit Thakur Dass Bhargava. As stated above this proposed amendment E
had already been circulateq to all. It is clear that Dr. Ambedkar haq already
accepted the proposal of Pandit Thakur Dass Bhargava.

24. On 8th December, 1948, when Pandit Thakur Dass Bhargava moved
his amendment, the debate read as follows:
F
"Pandit Thakur Das Bhargava: Sir, I beg to move.

That for amendment No. 687 of the List of amendments, the
following be substituted:-

"That for clause (2) of article 23, the following be substituted :- G
"(2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds
on grounds only of religion, race, caste, language or any of them."

and sub-clauses (a) and (b) of clause (3) of article 23 be renumbered H
822 SUPREME COURT REPOR~2002] SUPP. 3 S.C.R.

A as new article 23-A".
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 majority' .
· Secondly that not only the institutions whic.h are maintained by the
.B 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,
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
c 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 riot 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 interests require that no
D majority also should be discriminated against in this matter.
. Unfortunately, there is in some matters a tendency that' the minorities
as such possess 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 ofthis sort between the minority
E . and the majority. Sometimes the minority said that 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.

In educational matters, I cannot understand, from the national
F 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 I
G the student-world of the minority and the majority communities equally.

The second change which this amendment seeks to make is in
regard to the institutions which will be governed by this provision of .
law. Previously only the educational institutions maintained by ·the
, ' 1 State were included. This amendment seeks to include such other
H
T.M.A. PAIFOUNOATIONv. STATEOFKARNATAKA[S.N. VARIAVA,J.] 823

institutions as are aided by State funds. There are a very large number A
of such institutions, and in future, by this amendment the rights of
the minority have been broadened and the rights of the majority have
_. . I been secured. So this is a very healthy amendment and it is a kind
of nation-building amendment.
Now, Sir, the word "community" is sought to be removed from this B
provision because "community" has no meaning. If it is a fact that the
existence of a community is detennined 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, C
or religion no discrimination can be allowed.
J
My submission is that considering the matter from all the
standpoints, this amendment is one which should be accepted
unanimously by this House." (emphasis supplied)
D
25. To be noted that the proposed Article 23(2) is now Article 29(2).
It is being incorporated in Article 23 which also contained what is now Article
30(1 ). Pandit Thakur Dass Bhargava ~as proposing this amendment with the
clear intention that it should apply to minority educational institutions under,
what is now Article 30(1 ). The whole purpose is to further principles of
secularism and to see that in State maintained and State aided educational E
institutions there was no distinction between majority or minority communities.
At this stage it must be noted that no contrary view was expressed at all. Dr.
Ambedkar then replied as follows:

"The Honourable Dr. B. R. Ambedkar: Sir, of the amendments which F
have been moved to article 23, I can accept amendment No. 26 to
amendment No. 687 by Pandit Thakur Dass Bhargava. I am also
prepared-to accept amendment No. 31 to amendment No. 690, also
moved by Pandit Thakur Dass Bhargava."
26. The amendment proposed by Pandit Thakur Dass Bhargava was
unanimously accepted by the Constituent Assembly. This is how and why, G
what is now Article 29(2) was framed and incorporated. Clearly it was to
govern all educational institutions including minority educational institutions
under what is now Article 30( 1). The final resolution is as follows:

"Mr. Vice-President: The question is:
H
824 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

· A That for clause (2) of article 23, the following be substituted :-

~
"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";

.and sub-clause (a) and (B) of clause (3) of article 23 be renumbered
B ·as new article 23-A.

·The motion was adopted."

27. A reading of the Constituent Assembly debates clearly show that
the intention of the framers of the Constitution was that Article 29(2) was to
'
C apply to all educational institutions, including minority educational institutions
I

under Article 30.

. 28. This being the historical background and the intention of the fra~ers,
the contextual approach must also be one which gives effect to the minority
rights but which does not elevate them into a special or privileged class of
D citizens. The contextual approach must therefore be that minorities have full
rights to establish and administer educational institution at their own costs,
but if they choose to take State aid they must then abide by the Constitutional
mandate of Article 29(2) and with principles of equality and secularism.

29. The same result follows if well settled principles of interpretation
E are applied. It is settled law that if the language of the provision, being
considered, is plain and unambiguous the same must be given effect to,
irrespective of the consequences that may result or arise. It is also settled Jaw
that while interpreting provisions of a Statute, if two interpretations are
possible, one which leads to no conflict between the various provisions and
F another which leads to a conflict between the various provisions, then the
interpretation which leads to no conflict must always be accepted. As already
been seen, the intention of the framers of the Constitution is very clear. The
framers unambiguously and unanimously intended that rights given under
Article 30(1) could be fully enjoyed so long as the educational institutions
were established and administered at their own costs and expense. Once State
G aid was taken, then principles of equality and secularism, on which our
Constitution is based, were to prevail and admission could not be denied to
any student on grounds of religion, race, caste, language or any of them.
30. A plain reading of Article 29(2) shows ·that it applies to "any
educational institution" maintained by the State or receiving aid out of State
H funds. The words "any educational institution" takes within its ambit an
T.M.A.PAI FOUNDATIONv. STATEOFKARNATAKA[S.N. VARIAVA,J.] 825
educational institution established under Article 30( 1). It is to be remembered A
that when Article 29(2) [i.e. Article 23(2)] was framed it was part of the same
Article which contained what is now Article 30(1). Thus it was clearly meant
to apply to Article 30(1) as well. Significantly Article 30 nowhere provides that
the provisions of Article 29(2) would not apply to it. Article 30( 1) does not
exclude the applicability of the provisions of Article 29 (2) to educational
institutions established under it. A plain reading of the two Articles indicates B
that the rights given under Article 30( 1) can be fully exercised so long as no
aid is taken from the State. It is for this reason that Article 30 does not make
it compulsory for a minority educational institution to take aid or for the State
to give it. All that Article 30(2) provides is that the State in granting aid to
educational institutions shall not discriminate against any educational C
institution on the ground that it is under the management of a minority. In
cases where the State gives aid to educational institutions the State would
be bound by the Constitutional mandate of Article 29(2) to ensure that no
citizen is denied admission into the educational institution on grounds of
religion, race, caste, language or any of them. By so insisting the State would
not be discriminating against a minority educational institution. It would only D
be performing the obligation cast upon it by the Constitution of India.

31. This interpretation is also supported by the wording of Article
30(2). Article 30(2) merely provides that the State shall not discriminate on the
ground that it is under the management of a minority. To be noted that Article E
30(2) does not provide that State shall not in granting aid impose any condition
which would restrict or abridge the rights guaranteed under Article 30(1). The
framers were aware that when State aid was taken the principles of equality
and secularism, which are the basis of our Constitution, would have to
prevail. Clearly the framers of the Constitution considered the principle of
equality and secularism to be more important than the rights under Article F
30(1 ). Thus in Article 30(2) it was advisedly not provided that rights under
Article 30(1) could not be restricted or abridged whilst granting aid. A plain
reading of Article 30(2) shows that the framers of the Constitution envisaged-
that certain rights would get restricted and/or abridged when a minority
(· educational institute chose to receive aid. It must also be noted that when
property rights were deleted [by deletion of Article 19(1)(f)] the framers ofthe G
Constitution realised that rights under Article 30(1) would get restricted or
abridged unless specifically protected. Thus Article 30(1A) was introduced.
Article 30(1A), unlike Article 30(2), specifically provides the acquisition of
property of a minority educational institute must be in a manner which does
not restrict or abrogate the rights under Article 30(1). When the framers so H
826 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A intended they have specifically so provided. Significantly even after Judgments
of this ,Court (set out hereafter) which laid down that Article 29(2) applied to
Article 30(1 ), the framers have not amended Article 30 to provide to the
contrary.

32. Even though a plain reading of Articles 29(2) <md Article 30 leads.
B to no clash between the two Articles, it has been submitted by counsel on
I

behalf of minorities that the right to establish and administer educational
institutions be considered an absolute right and that by giving aid the State
cannot 'impose conditions which would restrict or abrogate and/or abridge, in
any manner, the right under Article 30(1). It has been submitted that the right
C to administer educational institutions includes the right to admit students. It
has been submitted that the minorities, whether based on religion or language,
have a right to admit students of their community. It is submitted that this
right is not taken away or abridged because State aid is taken. It is submitted -.
that notwithstanding the plain language of Articles 29(2) and 30 it must be
held that the rights under Article 30( I) prevail over Article 29(2).
D
33. To accept such an argument one would have to read into Article
30(2) words to the effect "state cannot in granting aid Jay down conditions
which would restrict, abridge or abrogate rights under Article 30( I)" or to read
into Article 30( 1) words to the effect "notwithstanding the provisions of
Article 29(2)". Purposely no such words are used. A clash is sought to be
E created between Article 30(1) and 29(2) when no such clash exists. The
interpretation sought to be given is on presumption that rights under Article
30( I) are absolute. As is set out in greater detail hereafter, every single
authority of this Court, for the past over 50 years, has held that the rights
under Article 30(1) are subject to restrictions. AII counsel appearing for the
F minority educational institutions conceded that rights under Article 30(1) are
subject to general secular laws of the country. If rights under Article 30( 1) are
subject to other laws of the country it can hardly be argued that they are not
subject to a constitutional provision.

34. The interpretation sought to be placed not only creates a clash t'

G between Articles 29(2) and 3-Q but also between Article 30 and Article 15(1 ). .I
••
Article 15(1) prohibits the State from discriminating against citizens on grounds
only of religion, race, caste, sex, place of birth or any of them. If the State
were to give aid to a minority educational institution which only admits
students of its community then it would be discriminating against other
citizens who cannot get admission to such institutions. Such an interpretation
H
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA[S.N. VARIA VA, J.} 827
.·· would also lead to clash between Article 30 and Article 28(3). There may be A
a religious minority educational institute set up to teach their own religion.
Such an institute may, if it is unaided, only admit students who are willing
to say their prayers. Yet once aid is taken such an institution cannot compel
any student to take part in religious instructions unless the student or his
parent consents. If Article 30(1) were to be read in a manner which permits
State aided minority educational institutions to admit students as per their B
choice, then they could refuse to admit students who do not agree to take
part in religious instructions. The prohibition prescribed in Article 28(2) could
then be rendered superfluous and/or nugatory. Apart from rendering Article
28(2) nugatory such an interpretation would set up a very dangerous trend.
All minority educational institutions would then refuse to admit students who C
do not agree to take part in religious instructions. In all fairness to all the
counsels appearing for minority educational institutions, it must. be stated .
that not a single counsel argued that Article 28(2) would not govern Article
30(1 ). All counsel fairly conceded that Article 30(1) would be governed by
Article 28(2). One fails to understand how Arti~le 30(1) can be held to be
subject to Article 28(2) but not subject to Articie 29(2). D
35. Accepting such an interpretation would also lead to an anomalous
situation. As is being held all citizens have a fundamental right to establish
and carry on an educational institution under Article 19( 1)(g). An educational
institution can also be established and maintained under Article 26(a). An E
educational institution could also be established under Article 29( 1) for
purposes of conserving a distinct ·language, script or culture. All such
educational institutions would be governed by Article 29(2). Thus if a religious
.educational institution is established under Article 26(a) it would on receipt
of State aid have to comply with Article 29(2). Similarly an educational institute
established for conserving a distinct language, script or culture would, if it F
receives State aid, have to comply with Article 29(2). Such institution would
also have been established for benefit of their own community or language
or script or culture. If such educational institutions have to comply with
Article 29(2) it would be anomalous to say that a religion or linguistic
educational institution, merely because it is set up by a minority need not G
comply with Article 29(2). The anomaly would be greater because an educational
institute set up under Article 26(a) would be for teaching religion and an
educational institute set up under Article 29( I) would be for conserving a
distinct language. On the other hand an educational institute set up under
Article 30( 1) may be to give general secular education. It would be anomalous
to say that an educational institute set up to teach religion or to conserve H
I
828 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A a d~stinct language, script or culture has to comply with Article 29(2) but an
educational institute set up to give general secular education does not have
to comply with Article 29(2). It must again be remembered that Article 30 was
not framed to create a special or privileged class of citizens. It was framed
only for ·purposes of ensuring that the politically powerful majority did not
prevent the minority from having their educational institutes. We cannot give
B to Article 30( 1) a meaning which would result in making the minorities,
whether religious or linguistic, a special or privileged class of citizens. We
should give to Article 30(1) a meaning which would further the basic and
•
t
overriding principles of our Constitution viz. equality and secularism. The
interpretation must not be one which would create a further divide between
C citizen and citizen.
36. · It ·has also been submitted that a minority educational institute
would have been established only for the purpose of giving education to
students of that particular religious or linguistic community. It has been
submitted that if Article 29(2) were to apply then the very basis of establishing
D such an educational institution would disappear once State aid is taken. .•
Whilst considering such a submission one must keep in mind that the desire '·
to establish educational or other institutions for the b1!nefit of students of
their own community would be there not only in minority communities. Such
a desire would be there in all citizens and communities, whether majority or
E minority. If the majority communities, whether religious or linguistic, can·
establish and administer educational institutions for their own community at
their own costs why should the position be different for minorities. If an
educational institute established by a majority community for members of that
community only, takes States aid, it. would then lose the right to admit only
,'
r

I

!

students of its own community. It would have to comply with the Constitutional
F mandate of Article 29(2).. The position is no different for an educational
institute established by a minority. The basic feature of our Constitution is
equality and secularism. It follows that the minority cannot be a more privileged
class or· section of citizen. At the cost of repetition it is again emphasised that
Article 30 does not deal with minorities who are economically or socially
G backward. These are not communities whose children are not capable of
competing on merit, e.g. a Tamilian in Tamil competes with others and gets I
admission on merit. Even when he/she shifts to Maharashtra he/she continues
to be able to compete openly and get admission on merit. Merely because a
Tamilian shifts to Maharashtra or some other State does not mean that
Tamilian becomes a citizen entitled to special privilege or rights not available
H to other citizens. This was not the purpose or object of Article 30. Article 30
T.M.A. PAl FOUNDATIONv. STATEOFKARNATAKA[S.N. VARIAVA,J.J 829
was framed only to ensure that the Maharashtrians, by reason of their being A
politically powerful, do not prevent the Tamilian from establishing an
educational institution at their. own cost. Article 30 merely protects the right
of the minority to establish and administer an educational institution, i.e. to
have the same rights as those enjoyed by majority. Article 30 gives no right
to receive State aid. It is for the institution to decide whether it wants to
receive aid. If it decides to take State aid then Article 30(2) merely provides B
that the State will not discriminate against it. When State, whilst giving aid,
asks the minority educational institute to comply with a constitutional mandate,
it can hardly be said that the State is discriminating against that institute. The
State is bound to ensure that all educational institutes, whether majority or
minority, comply with the constitutional mandate. C
37. Another aspect to be kept in mind is that in practical terms, throwing
open admission to all, does not affect rights under Article 30( 1). If the
educational institution is for purposes of teaching the religion or language of
the concerned minority, then even though admission is thrown open to all
very few students of other communities will take admission in such an D
educational institution. If the educational institution is giving general secular
education, then the minority character of that institution does not get affected
by having a majority of students from other communities. Even though the
majority of students may be from other communities the institution will still
be under the management of the minority. Further if the educational institution E
is a school, then the management will, in spite of Article 29(2), still be able
to take a sizable number of students from their own community in.to the
school. Article 29(2) precludes reservations on grounds of religion, race, caste
or language. But it does not preclude giving of preference, if everything else
is equal. Admission into schools generally are by interview. At this stage
there is no common entrance test which determines merit. Undoubtedly children F
of the minority communities, contemplated by Article 30(1), would be as
bright or capable as children of other communities. Thus whilst admitting at
this stage preference can always be given to members of their own community
so long as some students of other communities are also admitted and denial
is not on basis of religion, race, caste, language or any of them. Thus for
admissions in schools, Article 29(2) will pose no difficulty to minority G
institutions. However, Article 29(2) will require, if State aid is taken, that
admissions into college, either under graduate or post graduate and admission
into professional course, be not denied to any citizen on grounds of religion,
race, caste, language or any of them. This would mean that admissions must
be on merit from the common entrance test prescribed by the University or H
830 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.
.•
A State. Here also if two students have equal merit, preference can be given to
a student of their own community. Also Article 29(2) does not preclude
minority (or even other educational institutions) admitting or denying admission
on grounds other than religion, race, caste, language or any of them. Thus ,. ~
e.g. preferential admission could be given to those students who are willing
to serve the community or work in a particular region, for a particular period
B of time after passing out. Also in such cases marks not exceeding 15% can
be allotted for interviews. This will ensure that a sufficient number of students
of their own community are admitted. More importantly there is no reason to
believe that students of these minority communities will not be able to
compete on merit. A sizable number will be available on merit also.
c 38. Most importantly we are interpreting the Constitution. As the
language of Articles 29(2) and 30 is clear and unambiguous the Court has to
give effect to it, irrespective of the consequences. This is all the more
· necessary as the same is in consonance with the intention of the framers.
Court cannot give an interpretation which creates a clash where none exists.
D Court cannot add words which the framers purposely omitted to use/add.
Courts cannot give an interpretation, not supported by a plain reading, on
considerations, such as minority educational institutions not being able to
admit their own students. To be remembered that there is no compulsion to
receive Sate aid. As was mentioned during the Constituent Assembly Debates
E the management can refuse to take aid. But if they choose to take State aid,
then even a minority educational institution mast abide by the Constitutional
(
mandate of Article 29(2) just as they have to comply with the Constitutional
mandate of Article 28(2) and' comply with general secular laws of the country.

39. Thus looked at either from the historical point of view andior the
F intention of the framers and/or from the contextual viewpoint and/or from
principles of interpretation it is clear that Article 29(2) fully applies to Article
30. If a minority educational institute chooses to take State aid, it cannot then
refuse to admit students on grounds of religion, race, caste, language or any
of them.

a· 40. Now let us see whether the principles of "stare decisis" require us
to take a different view. A large number of authorities have been cited and
one has to consider these authorities.

41. The first case, which was decided as far back as on 9th April, 1951,
was the case of The' State of Madras v. Srimathi Champakam Dorairajan.
H It is , reported in [1951] SCR 525: In this case the State of Madras was
T.M.A. PAl fOUNDATION v. STATEOFKARNATAKA{S.N. VARIAVA, J.] 831

maintaining Engineering and Medical Colleges. In those colleges, for many A
years before the commencement of the Constitution, the seats used to be
filled up in a proportion, set forth in what was called "the Communal G.O.".
The allocation of seats was as follows:
"Non-Brahmin (Hindus) 6
Backward Hindus 2 B
Brahmins 2
Harijans 2
Anglo-Indians and Indian Christians
Muslims I" c
After the Constitution was framed a Writ Petition under Article 226 came to
be filed by Srimathi Champakam Dorairajan and one another in the High Court
of Madras. She complained that this Communal G.0. affected her fundamental
rights, inter alia, under Article 29(2). On behalf of the State it was argued
that there was no discrimination and no infringement of fundamental rights. D
It was argued that it was the duty of the State to take care of and promote
educational and economic interest of the weaker section of the people. It was
argued that giving preferences and/or reservations did not violate Article
29(2). This argument was repelled and it was held as follows:

"It will be noticed that while clause (1) protects the language, .script
E
or culture of a section of the citizens, clause (2) guarantees the
fundamental right of an individual citizen. The right to get admission
into any educational institution of the kind mentioned in clause (2) is
a right which an individual citizen has as a citizen and not as a member
of any. community or class of citizens. This right is not to be denied F
to the citizen on grounds only of religion, race, caste, language or any
of them. If a citizen who seeks admission into any such educational
institution has not the requisite academic qualifications and is denied
admission on that ground, he certainly cannot be heard to complain
of an infraction of his fundamental right under this article. But, on the G
other hand, if he has the academic qualifications but is refused
admission only on ground of religion, race, caste, language or any of
them, then there is a clear breach of his fundamental rights.

XXX XXX

XXX XXX H
832 SUPREME COURT REPORTS [2002} SUPP. 3 S.C.R.

A Take the case of the petitioner Srinivasan. rt is not disputed that
he secured a much larger number of marks than the marks secured by
many of the Non·Brahmin candidates and yet t~e Non·Brahmin
'candidates who secured less number of marks will be admitted into six
out of every 14 seats but the petitioner Srinivasan will not be admitted
into any of them. What is the reason for this denial of admi:ssion
B except that he is a Brahmin and not a Non·Brahmin. He may have
secured higher marks than the Anglo·lndian and Indian Christians or
Muslim candidates but, nevertheless, he cannot get any of the seats
reserved for the last mentioned communities for no fault of his e!xcept
that he is a Brahmin and not a member of the aforesaid communities.
c Such denial of admission cannot but be regarded as made on ground
only of his caste.

It is argued that the petitioners are not denied admission only
because they are Brahmins but for a variety of reasons, e.g., (a.) they
are Brahmins, (b) Brahmins have an allotment of only two se21ts out
D of 14 and (c) the tw~ seats have already been filled up by more
meritorious Brahmin candidates. This may be tme so far as these two
seats reserved for the Brahmin are concerned but this line of arg1ument
can have no force when we come to consider the seats reserved for
candidates of other communities, for so far as those seats are
concerned, the petitioners are denied admission into any of them not
E
on any ground other than the sole ground of their being Brahmins and
not being members of the community for whom these reservations
have been made. The classification in the Communal G.O. proceeds on
the basis of the religion, race and caste. In our view, the classification
made in the Communal G.O. is opposed to the Constitution and
F constitutes a clear violation of the fundamental rights guaranteed to
'the citizen under article 29(2). In this view of the matter, we do not find
it necessary to consider the effect of articles 14 or 15 on the specific
articles discussed above."

Thus as far back as in 1951 it has been held that Article 29(2) does not pennit
G reservation in favour of any caste, community or class of people. An argument
based on the word "only" in Article 29(2), to the effect that admitting students
of their own community did not amount to refusing admission on grounds of
religion, race, caste, language or any of them was rejected. Undoubtedly, this
was a case pertaining to educational institutions maintained by the State. But
H the interpretation of Article 29(2) would remain the same even in respect of
T.M.A. PAl FOUNDATIONv. STATEOFKAR.NATAKA[S.N. VARIAVA,J.] 833
"educational institutions aided by the State". ln all such institutions there can A
be no reservations based on religion, race, caste, language or any of them.
The term "any educational institution" in Article 29(2) would also include a
minority educational institution under Article 30. Thus the interpretation of·
Article 29(2) would remain the same ev~n in respect of a minority educational
institution under Article 30( 1).
B
42. In Champakam Dorairajan 's case the reservations were not just for
economically or socially backward communities. There were reservations for
Anglo Indians, Indian Christians, Muslims, Brahmins and Non~ Brahmins. After
this Court struck down the reservations the framers of the Constitution
amended Article 15 by adding Article 15(4) which reads as follows: C
"I 5(4). Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes."

Thus when the framers of the Constitution did not want Article 29(2) to apply D
they have specifically so provided. Significantly no such amendment was
made in Article 30( 1) even though reservations in favour of minority
communities was also held to be violative of Article 29(2).

43. In the case of T11e State of Bombay v. Bombay Education Society E
and Ors., reported in [1955] I SCC 568 an Anglo~ Indian School, called Barnes
High Court at Deolali, received aid from the State of Bombay. The State of
~ombay issued a circular order on 6th January, 1954 which enjoined that no
primary or secondary school could admit to a class where English is used as
the medium of instruction, any pupil other than the pupil whose mother
tongue was English. This was challenged in a Writ Petition under Article 226 F
in the High Court of Bombay. The Petition having·been allowed, the State filed
an Appeal to this Court. This. Court held as follows:

"Assuming, however, that under the impugned order a section of
citizens, other than Anglo-Indians and citizens of non-Asiatic descent,
whose language is English, may also get admission, even then citizens, G
whose language is not English, are certainly debarred by the order
from admission to a School where English is used as a medium of
instruction in all the classes. Article 29(2) ex facie puts no limitation
or qualification on the expression "citizen". Therefore, the construction
sought to be put upon clause 5 does not apparently help the learned H
834 . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A ·Attorney-General, for even on that construction the order will
contravene the provisions of article 29(2).

The learned Attorney-General then falls back upon two contentions
to avoid the applicability of article 29(2). In the first place he contends
.that article 29(2) does not confer any fundamental right on all citizens
B generally but guarantees the rights of citizens of minority groups by
:providing that they must not be denied admission to educational
institutions maintained by the State or receiving aid out of State funds
on grounds only of religion, race, caste, language or any of them and
he refers us to the marginal note to the article. This is certainly a new
· contention put forward before us for the first time. It does not appear
c to have been specifically taken in the afltdavits in opposition filed in
the High Court and there is no indication in the Judgment under
appeal that it was advanced in this fonn before the High Court. Nor
was this point specifically made a ground of appeal in the petition for
leave to appeal to this Court. Apart from this, the contention appears
D to us to be devoid of merit. Article 29(1) gives protection to any
1, section of the citizens having a distinct language, script or culture by
guaranteeing their right to conserve the same. Article 30( 1) secures to
all minorities, whether based on religion or language, the right to
establish and administer educational institutions of their choice. Now
suppose the State maintains an ·educational institution to help
E conserving the distinct language, script or culture of a section of the
citizens or makes grants in aid to an educational institution established
by a minority community based on religion or language to conserve
their distinct language, script or culture, who can claim the protection
' of arti~le 29(2) in the matter of admission into any such institution?
F Surely the citizens of the very section whose language, script or
culture is sought to be conserved by the institution or the citizens
who belong to the very minority group which has established a~d is
administering the institution, do not need any protection against
themselves and therefore article 29(2) is not designed for the protection
of this section or this minority. Nor do we see any reason to limit
0 article 29(2) to citizens belonging to a minority group other than the
section or the minorities referred to in article 29( 1) or article 30( 1), for
the citizens, who do not belong to any minority group, may quite
conceivably need this protection just as much as the citizens of such
other minority groups. If it is urged that the citizens of the majority
group are amply protected by article 15 and do not require the
H
T.M.A. PAl FOUNDATION r. STATE OF KARNATAKA[S.N VARIAVA,J.] 835
protection of article 29(2), then there are several obvious answers to A
that argument. The language of article 29(2) is wide and unqualified
and may well cover all citizens whether they belong to the majority
or minority group. Article 15 protects all citizens against the State
whereas the protection of article 29(2) extends against the State or any
body who denies the right conferred by it. Further article 15 protects
all citizens against discrimination generally but article 29(2) is a B
protection against a particular species of wrong namely denial of .
admission into educational institutions of the specified kind. In the
next place article 15 is quite general and wide in its terms and applies
to all citizens, whether they belong to the majority or minority groups,
and gives protection to all the citizens against discrimination by the C
,.
State on certain specific grounds. Article 29(2) confers a special right
on citizens for admission into educational institutions maintained or
aided by the State. To limit this right only to citizens belonging to·
minority groups will be to provide a double protection for such
citizens and to hold that the citizens of the majority group have no
special educational rights in the nature of a right to be admitted D
into an educational institution for the maintenance of which they
make contributions by way of taxes. We see no cogent reason for
such discrimination. The heading under which articles 29 and 30 are
grouped together- namely "Cultural and Educational Rights"~ is quite
general and does not in terms contemplate such differentiation. If the E
fact that the institution is maintained or aided out of State funds is
the basis of this guaranteed right then all citizens, irrespective of
'whether they belong to the majority or minority groups, are alike
entitled to the protection of this fundamental right. In view of all these
considerations the marginal note alone, on which the Attorney~General
relies, cannot be read as controlling the plain meaning of the language F
in which article 29(2) has been couched. Indeed in The State of
Madras v. Srimathi Champakam Dorairajan, [1951] SCR 525, this
Court has already held as follows:
~'It will be noticed that while clause (1) protects the language,
script or culture of a section of the citizens, clause (2) guarantees the G
fundamental right of an individual citizen. The right to get admission
into any educational institution of the kind mentioned in clause (2) is
a right which an individual citizen has as a citizen and not as a member
of any community or class of citizens."
H
836 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A In our judgment this part of the contention of the learned Attorney-
, General cannot be sustained." (emphasis supplied)
..
In this case it was also argued that the word "only" in Article 29(2) had to
I
be given some meaning and that the circular order did not deny citizens
admission only on ground of religion, race, caste, language or any of them.
B It was submitted that the object of the circular order was to secure advancement
of Hindi which was ultimately to be the National language. It was submitted
that thus there was no denial "only" on the ground of religion, race, caste,
language or any of them. It was submitted that the denial was for the purposes
of promoting the advancement of the national language and to facilitate
C imparting of education through the medium of the pupils mother tongue. This
. argument was repelled in the following tenns:

'"Granting that the object of the impugned order before us was what
is claimed for it by the learned Attorney-General, the question still
'remains as to how that object has been sought to be achieved.
D Obviously that is sought to be done by denying to all pupils, whose
mother tongue is not English, admission into any School where the
medium of instruction is English. 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
E · 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. The same principle is implicit in the decision of this Court
in The State of Madras v. Srimathi Champakam Doraira)an, [ 1951]
SCR 525. There also the object of the impugned communal G.O. was
F
to advance the interest of educationally backward classes of citizens
but! that object notwithstanding, this Court struck down the order as
·un-constitutional because the modus operandi to achieve that object
was directly based only on one of the forbidden grounds specified in
the article. In our opinion the impugned order offends against the
G fundamental right guaranteed to all citizens by article 29(2).'' J

'
It may be mentionedJ even though not relevant for the purposes of this
judgmentJ that in this case it has also been submitted that the rights under
Article· 30(1) are only for the purposes of conserving language, script or
culture as set out in Article 29(1). This argument was also repelled by this
H Court.
T.M.A. PAl FOUNDATION v. STATE OF KARNATAKA[S.N. VARIAVA,J.] 837
44. Thus, as far back in 1955, a Constitution Bench of this Court has A
held that Article 29(2} is applicable to Article 30. It has been held that even
in a minority educational institution all citizens oflndia are entitled to admission.
It has been held that a citizen cannot be denied admission in a minority
educational institution on ground "only" of religion, race, caste, language or
any of them. To be noted that one of the petitioners was from the Gujarati
Hindu community and she was seeking admission into an Anglo-Indian School. B
Her right to be admitted was upheld. [t has been categorically held that Article
29(2) applied to an Article 30 educational institute. The framers of the
Constitution did not and have not amended the Constitution to provide
otherwise.

45. In Re The Kera/a Education Bill, 1957 reported in [1959] SCR 995,
c
the President of India made a Reference under Article 143(1) of the Constitution
of India for obtaining opinion of this Court upon certain questions relating
to the constitutional validity of some of the provisions of the Kerala Education
Bill which had been passed by the Kerala Legislative Assembly, but had been
reserved by the Governor for consideration· of the President of India. The D
questions which were referred to this Court for consideration were as follows:

"(I) Does sub-clause (5) of clause 3 of the Kerala Education Bill, read
with clause 36 thereof, or any of the provisions of the said sub-clause,
offend article 14 of the Constitution in any particulars or to any
extent? E
(2) Do sub-clause (5) of clause 3, sub-clause (3) of clause. 8 and
clauses 9 to 13 of Kerala Education Bill, or any provision thereof,
offend clause (I) of article 30 of the Constitution in any particulars or
to any extent.
F
(3) Does clause 15 of the Kerala Education Bill, or any provisions
thereof, offend article 14 of the Constitution in any particulars or to
any extent?

(4) Does clause 33 of the Kerala Education Bill, or any provisions
thereof, offend article 226 of the Constitution in any particulars or to G
any extent?"

46. Only question No. 2 is relevant for our purpose. Whilst answering
question No. 2 this Court, inter alia, observed as follows:

"Re. Question 2: Articles 29 and 30 are set out in Part Ill of our H
838 SUPREME ·COURT REPORTS [2002] SUPP. 3 S.C.R.

A Constitution which guarantees our fundamental rights. They are
grouped together under the sub-head "Cultural and Educational
Rights". The text and the marginal notes of both the Articles show
that their purpose is to confer those fundamental rights on certain
sections of the community which constitute minority communities.
Under cl. ( 1) Art. 29 any section of the citizens residing in the territory
B of India or any part thereof having a distinct language, script or
culture of its own has the right to conserve the same. It is obvious
that a minority community can effectively conserve its language,
script or culture by and through educational institutions and, therefore,
the right to establish and maintain educational institutions of its
c choice is a necessary concomitant to the right to conserve .its
distinctive language, script or culture and that is what is conferred on
all minorities by Art. 30( 1) which has hereinbefore been quoted in full.
This right, however, is subject to cl. 2 of Art. 29 which provides that
no citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out. of State funds on
D grounds only of religion, race, caste, language or any of them.

XXX

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
H 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 A
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
840 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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,
D 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
E 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
F 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
G 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
842 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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
D 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
E 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,
F 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
H 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 A
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 E
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 F
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 G
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
B 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
C 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
D 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
H administer educational institutions. The associate Art. 29{2) imposes

f
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 A
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 C
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 D
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 E
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 F
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
H 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 A
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
D 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
E 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
F 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
H 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 A
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 C
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 D
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 F
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 G
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
D 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
E 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
F 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
G 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
H 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 B
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 C
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 D
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
852 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

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
D 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
E 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.

' ,