T.M.A Pai Foundation v. State of Karnataka, [(2002) 8 SCC 481]

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This is a case decided by a Constitution Bench of 11-Judges of the Supreme Court mainly on the question of scope of right of minorities to establish and administer educational institutions of their choice under Article 30(1) read with Article 29(2) of the Constitution. This judgment deals with the rights of and permissible restrictions upon minority (aided and unaided) institutions. The majority opinion is on behalf of six Judges with one more Judge concurring with the majority by a separate opinion. Remaining four Judges gave three separate opinions in which they party dissented from the majority opinion.

The Supreme Court held as under:

With regard to a State law, the unit to determine a religious or linguistic minority can only be the State.
Even for a Central law, 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 on a par in Article 30, have to be considered State-wise.
The question, whether followers of a sect or denomination of a particular religion can claim minority status even though followers of that religion are in majority in that State, was left unanswered to be decided by a regular Bench.
The question as to what are the indicia for treating an educational institution as a minority educational institution, whether the fact that it was established by or is administered by person(s) belonging to a religious or linguistic minority is determinative of its character, was also left unanswered to be decided by a regular Bench.
The minorities’ rights under Article 30(1) cover professional education as indicated by the use of the words “of their choice”.
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 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.
Even though the words of Article 30(1) are unqualified, at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) is not absolute or above other provisions of the law. Regulations or conditions concerning, generally, the welfare of students and teachers may 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).
Article 30(2) only means that a minority institution shall not be discriminated against where 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 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. 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.
Although the right to administer includes within it a right to 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. 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 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. 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. Observing that a ceiling of 50% would not be proper, the Supreme Court held that 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 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.
For unaided schools and undergraduate colleges, where scope for merit-based selection is practically nil, State or University can provide for the qualifications and minimum eligibility conditions. Admission has to be on a transparent basis and merit considered.
Right to administer is not absolute and so regulatory measures can be imposed for ensuring educational standards and maintaining excellence thereof especially in professional institutions.
An aided minority institution remains so despite receiving grant-in-aid from the Government. It has a right over admitting its minority students on merit basis. It must also admit a reasonable number of non-minority students. What is a reasonable number is to be decided by State Govt. on consideration of type of institution, the courses of education, population and educational needs etc.
Right of minorities includes right to determine the procedure and method of admission and selection of students which must be fair and transparent and based on merit for professional and higher education colleges. Even unaided minority institution cannot ignore merit. In case of aided institution, for non-minority students, the State can regulate the admission which has to be merit-based subject to reservation policy of the State. Merit to be determined by an entrance test or by any other method with consideration for weaker sections.
In case of unaided minority institutions, the regulatory measure of control by the State should be minimal though condition of recognition and of affiliation have to be complied with, and though matters of appointment of teaching and non-teaching staff and administrative control over them would be beyond regulation. Fees charged by unaided institutions cannot be regulated but they cannot charge capitation fee.
In case of aided minority institutions, regulations can be provided for conditions of service of teaching and other staff without interfering with the overall administrative control.
But, both in aided and unaided minority institutions, management must evolve a rational procedure for selection of teaching staff and for taking disciplinary action. State or controlling authority 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 principal of any educational institution.

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