Print edition : November 22, 2002

The Supreme Court redefines the constitutionally guaranteed right of the minorities to establish and administer educational institutions of their choice.

APART from individual rights which members of the minority communities are entitled to along with the rest of the population, the Constitution guarantees certain collective rights for the minorities to help them preserve their language, religion and culture. Articles 29 and 30, grouped as Cultural and Educational Rights, provide cultural and linguistic autonomy to the minorities. These rights were meant to preserve the rich diversity of India and give the minorities a sense of security and belonging.

However, the interplay of these two Articles has been a matter of intense debate, touching on issues such as secularism and the degree of state control over private educational institutions. At the core of the debate are Article 29(2), which lays down that no citizen shall be denied admission to 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 Article 30 (1), which guarantees all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. It is not that these two provisions are in conflict with each other. But their judicial interpretation has often resulted in varied emphases on their relative significance for the principles of equality and secularism.

The latest exercise is the judgment of the 11-member Constitution Bench of the Supreme Court on October 31 in the T.M.A. Pai Foundation and Others vs State of Karnataka and Others case. Several other, related cases were grouped together with this case. In their petitions and appeals before the Supreme Court, many private educational institutions established by minorities and non-minorities, irrespective of whether they are dependent on state aid, asserted their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy. This is not the first time that the Supreme Court has had to interpret these Articles, and what the Bench did was to reiterate the principles laid down in the earlier judgments, devoid of their rigidity. In particular, the Bench sought to remove certain restrictions in the administration of private educational institutions, especially minority institutions, which complained that such restrictions infringed on the right guaranteed to them under Article 30(1).

In St. Stephen's College vs University of Delhi (1992), the Supreme Court had held that even a minority institution receiving aid from state funds was entitled to accord preference to or reserve seats for candidates belonging to its own community on the basis of religion or language. However, the court allowed such institutions to admit students of its own community to the extent of 50 per cent of the annual intake and insisted that such differential treatment must be in conformity with the university's standards. The court held that differential treatment of students in the admission process did not violate Article 29(2) or Article 14 (equality before law) and it was essential to maintain the minority character of the institution.

In 1993, a five-Judge Bench of the Supreme Court prima facie gave the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection, and therefore the questions that arose in St. Stephen's should be answered authoritatively by a larger Bench. Thus the decision in St. Stephen's was reopened and heard by a Seven-Judge Bench in the T.M.A. Pai Foundation case. The petitioner, T.M.A. Pai Foundation, Manipal, (claiming to be one belonging to a linguistic minority) argued that minority institutions should be insulated from judgments and legislation affecting others as for instance the ruling in the 1993 case of Unni Krishnan vs State of Andhra Pradesh that all colleges offering professional courses will have to reserve 50 per cent of the seats for candidates selected through an entrance examination conducted by the government. Minority educational institutions (MEIs) questioned the legal compulsions in having to admit non-minority students and asked why there was no statute obliging non-MEIs to admit students from minority communities.

In February 1997 the court directed that the matter be placed before a Bench of at least 11 Judges in view of the 42nd Amendment to the Constitution, whereby the subject of education was transferred to the Concurrent List from the State List under the Seventh Schedule of the Constitution. The question of who would be regarded as a "minority" was required to be reconsidered because the earlier case laws related to the pre-amendment era, when education was in the State List. An 11-Judge Bench set up during the tenure of M.M. Punchhi as Chief Justice was disbanded before it could complete the hearing of the case.

The present Bench, headed by Chief Justice B.N. Kirpal, was set up early this year during the tenure of S.P. Bharucha as Chief Justice. It framed 11 specific questions to be answered by it. During the hearing, the Union of India, represented by Solicitor-General Harish Salve, agreed that private, unaided educational institutions were entitled to greater autonomy. He, however, contended that Article 29(2) was applicable to minority institutions, and the claim of minority institutions that they could preferably admit students of their own religion or language to the exclusion of other communities was impermissible. In other words, under Article 29(2), even minority institutions could not deny admission on the grounds of religion, race, caste or language. Several States disagreed with the Centre's arguments on the applicability of Articles 29(2) and 30(1). Madhya Pradesh, Chattisgarh, and Rajasthan submitted to the court that the words "their choice" in Article 30(1) enabled MEIs to admit members of the minority community and that their inability to admit others as a result of the exercise of their choice would not amount to denial as contemplated under Article 29(2). On the contrary, Tamil Nadu, Punjab, Maharashra, West Bengal, Bihar and Uttar Pradesh submitted that Article 30(1) was subject to Article 29(2), arguing that an MEI availing itself of state aid loses the right to admit members of its community on the basis of the need of the community.

The 11-Judge Bench did not accept the contention that MEIs are outside the injunction laid down under Article 29(2). The Bench, however, held that denying admission even though seats are available, on the grounds of the applicant's religion, race, caste or language, is prohibited, but preferring students of minority groups did not violate Article 29(2). Examining the word "only" used in Article 29(2), six Judges of the Bench (Justices B.N. Kirpal, G.B. Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi, and Arijit Pasayat) said that denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on the grounds of religion and so on, but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30(1). They held that as long as the MEIs permitted the admission of non-minorities to a reasonable extent based on merit, it would not be an infraction of Article 29(2), even though the MEI admitted students of the minority group of its own choice for whom it 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. 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 Article 29(2) and Article 30," the six Judges said. Therefore, the six Judges, while endorsing the ratio laid down in St. Stephen's, removed the 50 per cent ceiling fixed in that case. They said that they believed that it would be more appropriate, depending on the level of the institution and the population and educational needs of the area in which the MEI was located, that the state properly balanced the interests of all by providing for such a percentage of students of the minority community to be admitted so as to serve adequately the interest of the community for which the MEI was established. At the same time, the aided MEIs can be required inter se to observe merit amongst the eligible minority applicants and the passage of common entrance test, where there is one, by candidates for admissions in professional and non-professional colleges. If there is no such test, a rational method of assessing comparative merit has to be evolved, they added. The non-minority seats can be filled through a common entrance test, counselling by a state agency, or other relevant criteria for the determination of merit. The state, for instance, could insist on allocating a certain percentage of these seats to candidates belonging to the weaker sections of society, they pointed out.

While Justices V.N. Khare, S.N. Variava, and Ashok Bhan in two separate judgments, concurred with this decision of the six Judges, Justices Syed Shah Mohamed Quadri and Ruma Pal expressed certain reservations. Justice Quadri disagreed with the majority decision giving the state the power to prescribe a percentage of ceiling on the number of minority students to be admitted to an MEI. He held that receipt of state aid would not in any way affect the right, if any, of MEIs to admit students of the minority communities.

Justice Ruma Pal warned that if the Executive was given the power to determine the requirements of the minority community in admissions to its educational institutions, it would have the effect of subjecting the MEI to an "intolerable encroachment" on the right under Article 30(1) and let in by the back door, as it were, those who should be denied entry all together. In her view, Article 29(2) pertains to the right of an individual and is not a class right. Treating non-minorities as a class, as the majority Judges seem to have done, and giving them a fixed percentage of available seats, would wash away a large chunk of the right of an aided MEI to operate for the benefit of the community it was set up to serve, she explained in her dissent. Besides, it would not be fair to distinguish aided MEIs from unaided MEIs and deprive the former of the benefit of non-application of Article 29(2), she reasoned.

The majority Judges have apparently reposed rather exaggerated trust in the objectivity and neutrality of the state to determine the requirement of the minorities' educational needs in various States. Such a trust may be misplaced if one considers the recent instances of state backing to minority-bashing and the consolidation of majoritarian tendencies in some States. All the 11 Judges, however, agreed that religious and linguistic minorities, under Article 30, have to be considered State-wise; that Article 30(1) includes the right to establish and administer even professional educational institutions; that there could be minimal regulatory measures to ensure educational standards and to maintain excellence of MEIs; that the procedure and method of admission as well as selection of students must be fair and transparent; that MEIs should be able to raise reasonable surplus to meet the cost of expansion and augmentation of facilities, without resorting to capitation fee or profiteering; and that all citizens 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), whereas the right of MEIs stems from Article 30(1).

THE judgment has led to legitimate fears that the unaided educational institutions, whether minority or majority-run, will now be free to fix their own fee structure, thus fleecing the students. The only limitation on the management of these institutions is the suggestion that the government can introduce regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institutions. However, in the absence of clarity on what constitutes capitation fee and profiteering, the judgment may have opened the floodgates of market forces; it leaves the decision on the fees to be charged to private educational institutions that are not dependent on government funds.

The Bench justified the fee hike in professional education, saying the number of seats available in government and government-aided colleges is very small, compared with the number of students seeking admission to private medical and engineering colleges and who may otherwise be eligible and deserving. As the void in the fields of medical and technical education has been filled by private institutions established in different places with the help of donations and the active part taken by public-minded individuals, the judgment suggested there was no harm if those who seek professional education in such institutions also pay for it.

The judgment defends the fee-hike in private unaided professional educational institutions by suggesting that they may be allowed to charge reasonable surplus to make their functions sustainable and to allow for augmentation and improvement. By citing worldwide trends in charging higher fee in professional courses, the judgment declared the scheme framed in the Unni Krishnan case unconstitutional. Under the scheme evolved in the 1993 case, an expert committee headed by a Vice-Chancellor fixed the fee for "free" and payment category seats in the self-financing colleges, after public discussions. Under that scheme, private professional colleges can fill up only 15 per cent of the seats with their candidates for any quantum of fee. Of the remaining 85 per cent, 50 per cent were free seats, and 35 per cent were for a fee fixed by the government.

The effect of the judgment by the 11-Judge Bench is that admissions will no longer be done by a centralised counselling and single window system, and the fee structure would not be fixed by the government for all types of colleges.

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