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

- **Citation:** [2002] Supp. 3 S.C.R. 587
- **Court:** Supreme Court of India
- **Decided:** 2002
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-m-a-pal-foundation-and-ors-v-state-of-karnataka-and-ors-18804
- **Pages:** 268

## Headnote

T.M.A. PAl FOUNDATION AND ORS.
v.
STATE OF KARNATAKA AND ORS.
OCTOBER 3 1, 2002
[B.N. KIRPAL, CJ., G.B PATTANAIK, V.N. KHARE, S. RAJENDRA
BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S.N.
VARIA VA, K.G. BALAKRISHNAN, P. YENKATARAMA REDDI,
ASHOK BHAN AND ARIJIT PASA Y AT, JJ.]
Constitution of India, 1950:
A
B
c
Article 30-Private Institutions-Government RegulationsApplicability 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 toHeld, 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
587
H
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 wholeHeld, it would be decided state-wise-Inclusion of 'education' in VII Schedule,
List II/ Entry 25 would not affict determination of a "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 of fee, 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-

## Text

_Characters 0–39,997 of 715,691. This is a partial read: ask again with offset=39997 for what follows._

T.M.A. PAl FOUNDATION AND ORS.
v.
STATE OF KARNATAKA AND ORS.
OCTOBER 3 1, 2002
[B.N. KIRPAL, CJ., G.B PATTANAIK, V.N. KHARE, S. RAJENDRA
BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S.N.
VARIA VA, K.G. BALAKRISHNAN, P. YENKATARAMA REDDI,
ASHOK BHAN AND ARIJIT PASA Y AT, JJ.]
Constitution of India, 1950:
A
B
c
Article 30-Private Institutions-Government RegulationsApplicability 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 toHeld, 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
587
H
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 wholeHeld, it would be decided state-wise-Inclusion of 'education' in VII Schedule,
List II/ Entry 25 would not affict determination of a "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 of fee, 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:
H
Doctrine of real de facto equality-Applicability of
T.M.A. PAl FOUNDATION v. STATEOFKARNATAKA
589
Words and Phrases:
"Occupation"-Meaning of in the context of Article 19(/)(g) of the
Constitution of India, 1950.
"Minority "-Meaning of
A
"Religious and Linguistic Minority"-Meaning of in the context of Article 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 of Delhi,
[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
F
activity o{.a person undertaken as a means of livelihood or a mission in
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 qf Andhra Pradesh and Ors., 1199;3)
G t sec 645, partly overruled.
H
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.
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 of Karnataka and Ors., [1992] 3 SCC 666, referred
E to.
F
G
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
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.
[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
I i·
I
I
I
!
I
I
l
!
594
· . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.
A · 1 d '
ad ·15sions and fixing. of rees, in the case of private unaided
me u mg
m
· •
·
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 ·autonomy 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 nonE 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
run is a matter of administration to be taken ~are of by the Management
of those institutions. Conditions granting recognition or affiliation can
broadly cover academic and educational matters including tbe welfure or
students and teachers. 1658-E; 659-01
·
, .
II
f
3.9. Conditions or affiliation or recognition, which pertain to the
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 c
main$enance 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. 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 E
by Government or as a wholly owned and controlled Government
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]
Re: Kera/a Education Bill, 1957 (1959( SCR 995, relied on.
F
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.
B
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]
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 of Bombay 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
c
by the religious and linguistic minorities, no law of the land, even the
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
G 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. 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 of Delhi, 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
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
c
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.