A landmark judgment

Print edition : February 28, 2003

The Supreme Court, in a recent judgment, dispels doubts about the definition of minorities and recognises the right of non-minorities to establish educational institutions, without impairing the fundamental rights of neither.

JUSTICE John Marshall who had served for nearly 35 years as the Chief Justice of the U.S. Supreme Court declared in Marbury vs Madison that "it is emphatically the province and the duty of the judicial department to say what law is". No doubt, the interpretation of laws and the exclusive jurisdiction of the apex court very often add a new leaf to the history of judiciary. The Constitution of every democratic country is an organic law that is amended by Parliament if necessary, and is being expounded by the apex court. On October 2, 2002, an 11-member Bench of the Supreme Court headed by Chief Justice B.N. Kirpal, in T.M.A. Pai Foundation & Others vs State of Karnataka & Others, no doubt pronounced a landmark judgment. Nevertheless, some jurists, legal luminaries, scholars and politicians aired their apprehensions over it by commenting that it has assigned unfettered power both to unaided minority and non-minority educational institutions in the sphere of admissions; that the abolition of the scheme framed in the Unni Krishnan case was undesirable; and that commercialisation of education had been recognised by the apex court itself, which they said amounted to contradicting and overriding its earlier decisions.

Pronouncing its verdict with full awareness of the reality of the situation and not making any dent in the veracity and nobility of the judiciary the court has framed certain important questions concerning the meaning of the expressions "education" and "educational institutions", "minorities" and "minority institutions" in various provisions of the Constitution. What are the indicia for treating an educational institution as a minority educational institution? Questions such as whether a State government or a university has the right to regulate the admissions of the students both in aided and unaided institutions; whether the statutory regulations that control the appointment of staff, service conditions, disciplinary actions, fixation of the fee, and so on would amount to interference with the rights of a minority institution; whether the decision of the Supreme Court in the Unni Krishnan case is valid on the whole; and whether the non-minorities have the right to establish and administer educational institutions like minorities have been elaborately, thoroughly, and precisely examined by the Bench keeping in mind the heavy burden that has been imposed on the exchequer by the entire expenditure required for providing education and the expediency of encouraging the private sector so as to utilise its public service, particularly in the avenue of higher education. The court also took into account the dimension of the impediments to non-minorities establishing and administering educational institutions as a matter of fundamental right.

While Article 30 of the Constitution is specific in conferring the rights to all minorities to establish and administer educational institutions, there is no specific provision in our Constitution guaranteeing such right to the non-minorities. Counsels for the petitioners vigorously argued that religious and linguistic non-minorities also have the right to establish and administer the educational institution under Articles 19(1)(g) and 26(a) of the Constitution.

Under Article 19(1)(g), all citizens have the right to practise any profession, or to carry on any occupation, trade or business. Though education has so far not been considered a trade or a business, in the State of Bombay vs RMD Chamarbaugwala (1957), the Supreme Court had observed: "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." In the Sodan Singh case (1989), it observed: "The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and the 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." The majority of 11-Judge Bench has declared that the above quoted observations in the Sodan Singh case correctly interpret the expression "occupation" in Article 19(1)(g). Thus the right of non-minorities to establish and administer educational institutions is treated on a par with that of minorities by the Supreme Court.

In addition to this, the Supreme Court's interpretation of Article 26(a) and its observation thereon are historic and unique. Article 26(a) was so far interpreted to mean that "every religious denomination or section shall have right to establish religious and charitable institutions of its own subject to public order, morality and health. The word institutions refer to organisations for religious and charitable purposes such as temples, mosques, maths, monasteries and the like". In the words of H.M. Seervai, "Under Article 26(a) all religious denominations, whether they constitute minorities or not, are entitled to establish religious and charitable institutions and this would include educational institutions where religious worship takes place and where religious instruction is imparted." No court has earlier observed that the word "institution" includes educational institutions, which impart instructions other than religious one. But the 11-Judge Bench, for the first time, has interpreted Article 26(a) that conferred the "right to establish and maintain institutions for religious and charitable purposes" in such a way as to include all kinds of educational institutions.

The Supreme Court has interpreted and expounded Article 26(a) as follows: "Therefore religious denomination or section 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 community, to set up an educational institution. Given this, the phrase `private educational institutions' as used in this judgment would include not only those educational institutions set up by persons or bodies, but also educational institutions set up by religious denominations; the word `private' is used in contradiction to government institution." Undoubtedly, the observation of the Supreme Court marks the beginning of a new era in recognising the fundamental right of non-minorities to establish and administer educational institutions.

Admittedly, non-minorities and minorities have not been conferred with unfettered rights to establish any institution. They shall have the right to establish institutions subject to reasonable restrictions, public order, morality and health. However, the restrictions should be based on public interest, security, integrity and sovereignty of the nation. Any restriction that strikes at the very root of the right to establish educational or religious institution, will infringe on the right enshrined in the Constitution.

In the judgment the majority of Judges themselves have earmarked certain areas for the regulations to ensure the maintenance of proper academic standards, atmosphere and infrastructure and prevention of maladministration beyond which neither the Union nor any State has the right to impose any restriction.

Since the judgment has overruled the scheme framed in the Unni Krishnan case relating to grant of admissions and fixation of fee, it is argued that the depressed classes and weaker sections have been seriously deprived of their opportunity to have higher education free of cost. The Bench justifies that "it is well established all over the world that those who seek professional education must pay for it" and observes that it is permissible for a State or a university, in the case of government institutions and private-aided institutions, to prescribe the rules and regulations for the admission of students on the basis of merit subject to the policy of reservation, and that it will also be permissible for a government or a university to remember that consideration should be shown to the weaker sections of society. Further, it is pointed out that the right of the minority institution under Article 39(1) is not absolute, if such institutions receive government aid or grant because Article 29(2) precisely says, "no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state fund on the grounds only of religion, race, caste, language or any of them".

In the St. Stephen's case (1992), it has been observed: "The minority institution shall make available at least 50 per cent of annual admission for other communities. The admission of other communities should be done purely on the basis of merit." But the 11-Judge Bench has not insisted that 50 per cent of intake must be from other communities in the aided minority institutions. However, it has stated that an aided minority institution is entitled to admit its own students and, at the same time, should admit students from other communities to a reasonable extent. It has also declared that admission "cannot be at the absolute sweet will and pleasure of the management of minority educational institutions". It has also observed that "it is open to the State authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of the society from amongst the non-minority seats".

Justice B.P. Jeevan Reddy had observed in the Unni Krishnan case, "We do not wish to express any opinion on the question 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)." He pointed out: "Trade or business normally connotes an activity carried on with a profit motive, and education has never been commerce in this country." But the Bench has ignored the latter view considering the reality of the situation prevalent in the country. The average expenditure on education of every State government is nearly 20 per cent of its income. In spite of this huge allocation, they are not in a position to provide free and compulsory education for all the children until they complete the age of 14, as directed in the Constitution under Article 45.

So, the court has stated that unprecedented demand for access to higher education and the inability or unwillingness of the government to provide the necessary support have necessitated the government to encourage the concept of privatisation in the field of higher education. Hence the Bench has observed that the essence of a private educational institution's autonomy is that the institution must have its management and administration. The essential ingredients of the management of the private institution include recruiting students, staff and fixing the quantum of fee that is to be charged. A State or a university has the power to lay down conditions for grant of recognition or affiliation. These conditions must pertain broadly to academic and educational matters and welfare of the students and members of the staff. Anyhow, the conditions that are laid down for granting recognition should not be such as may lead to the control of the government over unaided private educational institutions. At the same time, a State government has the right to compel the unaided institution to select the students on the basis of merit. While a certain percentage of seats is reserved for the management out of the list prepared by the government or university through entrance tests, the government could take care of the poor students in filling up the rest of the seats on the basis of counselling. The court has directed that the prescription of the percentage for this purpose should be done by the government according to the local needs, and different percentages can be fixed for unaided minority and non-minority institutions, including professional colleges.

It is a landmark judgment in the sense that the majority in the 11-Judge Bench has dispelled doubts about the definition of minorities, and has expounded the word `occupation' thereby recognising the non-minorities' right to establish and administer their own educational institutions under Articles 19(1)(g) and 26(a). These have been interpreted as charitable institutions in such a way as to enable all citizens to establish educational institutions.

In the light of this historic judgment, the Union and States have to review their policy in the matters of giving approval, affiliation, fixation of fee, method of selection of students, framing of rules, regulations and so on without impairing the fundamental rights of the minorities as well as non-minorities, who are now constitutionally entitled to establish and administer unaided educational institutions.

Aladi Aruna, a former Member of Parliament, was Minister of Law, Tamil Nadu, from 1996 to 2001.

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