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critical analysis of the case - T.M.A.Pai foundation v. State of karnataka, AIR 2003 SC 355 - through the view of minority of educational rights

OTHER RELEVANT DETAILS OF THIS CASE

Number of paragraphs; 450

Bench; 11 judge bench

B.N. Kirpal, Chief Justice

G.B. Pattanaik

S. Rajendrababu

K.G. Balakrishnan

Arjit Pasayat

U. N. Khare

Ruma Paul

Ashok Bhan

Syed Shah Mohammed Quadri

P. Venkattarama Reddy

S.N.Variappa

Cases referred

1)      Ahmadabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389 7 JUDGE BENCH

2)       In Re The Kerala Education Bill, [1959]1 SCR 995. 7JUDGE BENCH

3)      St. Stephens College v. University of Delhi,(1992) 1 SCC 558  5 JUDGE BENCH

4)      T.M.A PAI Foundation v. State of Karnataka, AIR 1994 SC 13 5 JUDGE BENCH

5) D.C.Wadhwa .v. State of Bihar AIR 1987 SC 579 5 JUDGE BENCH

6)      P.A. Inamdar & Otrs v. State of Maharashtra AIR 2005 SC 3226 7 JUDGE BENCH

7)      Unni Krishnan J.P & Otrs v. State of Andhra Pradesh AIR 1993 SC 2178 5 JUDGE BENCH

8)      D.A.V. College v. State of Punjab, AIR 1971 SC 1737 5 JUDGE BENCH

9)      State of Madras Vs Smt. Champakam Dorairajan,AIR 1951 SC 226. 7 JUDGE BENCH.

10)  Bal Patil and Anr v. Union Of India, (2005) 6 SCC 690

Minority

Under the title "Monkey Salvation for a Fish" Anthony de mello narrates the following;-

"What on earth are you doing?" said I to the monkey

When I saw him lift a fish out of the water and place it on the branch of a tree

"I am saving the fish from drowning" replied the monkey.

There is a danger that even the most benevolent majorities have this monkey's salvation over minorities. This is exemplified in the oft repeated invitation to the minorities to dive into the national mainstream. The Supreme Court of India has saved itself from a monkey. The constitution bench of 11 Judges in the matter of T.M.A. Pai Foundation and others v. State of Karnataka, 2003 had a relook into the interpretation of the constitutional rights of the religious and linguistic minorities to establish and administer educational institutions of their choice. Apart from interpreting the content and extent of these rights and juxtaposing them with the so called similar rights of non minorities, the judges went into the question what is the meaning and content of the expression ‘minorities' in Article 30? The expression "minority" has been derived from the Latin word 'minor' and the suffix 'ity' which means "small in number". J.A. Laponee in his book "The Protection to Minority" 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 religion or linguistic traditions than the majority population.

Article 30(1) uses the terms ‘linguistic' or ‘religious' minorities. The word ‘or' means that a minority may either be linguistic or religious and that it does not have to be both – a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both. The constitution of India provides for special rights to both linguistic and religious minorities "to establish and administer educational institutions of their choice" under Article 30. Hence no such law can be framed as may discriminate against such minorities with regard to the establishment and administration of the educational institutions vis-à-vis other educational institutions. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to inspire in them a sense of confidence. While upholding these rights, the Supreme Court has, in the TMA Pai case, also endorsed the concept that there should be no reverse discrimination and opines that "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, 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 Supreme Court has time and again, in many judgements, ruled that minority status can be decided only by taking the state as a unit. It has reasoned that since ‘religious' and ‘linguistic' are mentioned at the same time in Article 30 of the constitution, and since the states were carved out in India by taking language as the criterion, the classification of ‘minority' cannot be based on some other principle. Accordingly, a state government can confer minority status on an educational institute only after considering the socio-economic backwardness of the minorities in that state. This is the reason why, even though 90 per cent of the educational institutions (aided or unaided) in Kerala are run by person(s) belonging to the minority communities, the same have not been accorded minority status.

Constitutional right accorded to Minorities
(a) Article – 30
Article – 30(1) gives the linguistic or religious minorities the following two rights:
(a) The right to establish, and 
(b) The right to administer educational institutions of their choice.

Article – 30(2) bars the state, while granting aid to educational institutions, from discriminating against any educational institution on the ground that it is under the management of a linguistic or a religious minority. It mandates that in granting aid to educational institutions, the state 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 minorities have been given protection under article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education will develop the commonness of boys and girls of India. This is in the true spirit of liberty, equality and fraternity through the medium of education. The minorities will feel isolated and separate if they are not given the protection of article 30 general secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. While moving the Draft Constitution in the Assembly on November 4, 1948, Dr. Ambedkar quoted Grote, the historian of Greece, who had said: "The constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves." It is quite possible to pervert the Constitution without changing its form. That is exactly what is taking place in India. That was exactly what Adolf Hitler did in Germany. Without altering the form of the Weimar Constitution, he destroyed the entire constitutional spirit and, in the end, the Constitution itself. Prof. Wadhwa in D.C.Wadhwa .v. State of Bihar gives a quotation from the Roman legalist Julius Paulus (B.C. 204): "One who does what a statute forbids transgresses the Statute; one who contravenes the intention of a Statute without disobeying its actual words, commits a fraud on it." Auto-limitation and Self-scrutiny by the judiciary: vitiates Constitutional morality and judicial values?

Now let us come to the topic. The case of T.M.A.PAI foundation is a landmark case which deals with the rights of minorities in India, which often I feel in this nation has not yet been recognised. We say India is a home to various cultures, different people and different languages. And we say that there is UNITY IN DIVERSITY. But in my personal opinion I don't feel so… because still allot of people have been subdued under the hands of the most power handed majorities.

A brief idea about the previous and present landmark decisions that plays its due role in the rights of minorities

State of Madras v. Champakam durai rajan

It was this judgment that necessitated the Constitution First Amendment, which added Clause (4) to Article 15. It will be noticed in Article 29 that while Cl. (1) protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Cl. (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 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 other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right. The section of the people, in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petnrs. are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of Art. 46 override the provisions of Art.29 (2).

Re. Kerala Education Bill

The ruling in this case has been reiterated by the Supreme Court in Guru Nanak University case. In that case, the Supreme Court rejected the contention of the state of Punjab that a religious or linguistic minority should be a minority in relation to the entire population of India. The Court has ruled that a minority has to be determined, in relation to the particular legislation which is sought to be impugned. If it is a state law, the minorities have to be determined in relation to the state population. The Hindus in Punjab constitute a religious minority. Therefore, Arya Samajistis in Punjab also constitute a religious minority having their own distinct language and script. It is within the realm of possibility that the population of a state may be so fragmented that no linguistic or religious group may by itself constitute 50 percent of the total state population. In such a situation, every group will fall within the umbrella of Art. 30(1) without there being a majority group in the state against which minorities need to claim protection.

The Court has pointed out that if various sections and classes of the Hindus were to be regarded as ‘minorities' under art. 30(1), then the Hindus would be divided into numerous sections and classes and cease to be a majority any longer. The sections of one religion cannot constitute religious minorities. The term ‘minority based on religion' should be restricted only to those religious minorities, e.g. Muslims, Christians, Jains, Buddhists, Sikhs, etc., which have kept their identity separate from the majority, namely, the Hindus. The provision of article 30(1) does not however mean that the state can impose no regulations on the minority institutions. In this case, the Supreme Court also observed: "The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right". It has to be read with regulatory power of the state. Regulations which do not affect the substance of the guaranteed rights, but ensure the excellence of the institutions and its proper functioning in matters educational, are permissible.

In this case the question arose as to "whether the 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. It has 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 situated, and that the locality or ward or town where the institution was to be situated has to be taken as the unity to determine the minority community. No final opinion on this question was expressed, but it was observed at SCR p.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." In the two cases pertaining to D.A.V.College, this court had to consider whether the Hindus were a religious minority in the Guru Nanak college case 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 in the Kerala Education Bill, 1957 case the court held that the Arya Samajistis, who were Hindus, were a religious minority in the state of Punjab, even though they may not have been so in relation to the entire country. In the 1971 D.A.V.College case it was stated that "what constitutes a linguistic or religious minority must be judged in relation to the state inasmuch as the impugned Act is 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. There can, therefore, be little doubt that this court has consistently held that, with regard to a state law, the unit to determine a religious or linguistic minority can only be the state. 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 "linguistic minority" for the purpose of Article 30?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 Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not 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 meanings depending upon who is legislating. Language being the basis for 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 on par in Article 30.

Ahmadabad St. Xaviers College v. Government of Gujarat

Here in this case it was observed by the court that: "Every educational institution irrespective of community to which it belongs is a ‘melting pot' in our national life" and that it is essential that there should be a "proper mix of students of different communities in all educational institutions." This means that a minority institution cannot refuse admission to students of other minority and majority communities. The Supreme Court in this case has pointed out that the spirit behind article 30(1) is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering 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. As K.K. Mathew, J. has observed supporting the majority view in this case: "It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer and educational institution", and also the Supreme Court has rightly pointed out, "The whole object of conferring the right on the 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."

St. Stephen's College v. University of Delhi

The Court ruled out that college was established and administered by a minority community, viz., the Christian community which is indisputably a religious minority in India as well as in the union territory of Delhi where the college is located and hence enjoys the status of a minority institution. On the question of admission of students of the concerned minority community, the court has ruled that, according to article 30(1), the minorities whether based on religion or language have the right "to establish and administer" educational institutions of their choice and the right to select students for admission is a part of administration. On this point, the court has observed: "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 betterment of those who resort to it." There is also the question of fees chargeable by the unaided minority institution from its students. The reason is that unaided institutions have to meet the cost of importing education from their own resources and the main source can only be the fees collected from the students. But these institutions cannot be permitted to indulge in commercialization of education. Therefore, it would not be unconstitutional for the government to issue an order which places a restriction on the amount of fee chargeable by an institution, if, on facts, the minority institutions indulge in commercialization of education and maladministration of the educational institutions. Medium of Instruction – The right of a minority to establish and administer educational institutions of its choice also carries with it the right to impart instruction to its children in its own language. The result of reading articles 29(1) and 30(1) together is that the minority has the choice of medium of instruction and the power of the state to determine the medium of instruction has, therefore, to yield ground, to the extent it is necessary to give effect to this minority right. The most significant case on this point is the D.A.V College, Bhatinada v. State of Punjab. By a notification, the Punjab Government compulsorily affiliated certain colleges to the Punjab University which prescribed Punjabi in the Gurumukhi script as the sole and exclusive medium of instruction and examination for certain courses. The Supreme Court declared that it violated the right of the Arya Samajistis to use their own script in the colleges run by them and compulsorily affiliated to the University. The constitution uses the term ‘minority' without defining it. In this case, the Supreme Court also opined that while it is easy to say that minority means a community which is numerically less than 50 per cent, the important question is 50 % of what constitutes minority? Should it be of the entire population of India? Or of a state?  Or a part thereof? It is possible that a community may be in majority in a state but in a minority in the whole of India. A community may be concentrated in a part of a state and may thus be in majority there, though it may be in minority in the state as a whole. If a part of a state is to be taken, then the question is where to draw the line and what is to be taken into consideration a district, town, a municipality or its wards. The court delved into the issue of minority educational institutions and the parameters of their operational freedom. It was held that a minority institution had a right to establish an educational institution. On the question of whether such a minority institution could be directed to adopt a uniform selection criteria, the court ruled that if the selection or interview was based on candidate's academic record, as well as performance at the interview, such procedure cannot be disturbed by a university directive. Merely getting on state aid such institution would not be covered by Article 29(2) {which prohibits denial of admission on grounds of religion alone} and lose its protection under Article 30(1) {right of minorities to establish an educational institution}. However, a minority cannot establish educational institutions for its exclusive benefit. It can accord preference to members of its own community up to a maximum of 50% of the annual admission.

The Unnikrishnan case

The scheme in this case has the effect of nationalizing education in respect of important features like 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 conformity 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 nor reasonable.  This point has been observed in this decision in Para 194. The wide amplitude of the right conferred in Mohini Jain v. State of Karnataka, 1992 case was restricted by the court in this case. It held that the right to education related only to basic education and state provision for higher education would depend upon its economic capacity. Whereas private educational institutions could charge a fee higher than government institutions, the amount could not be a capitation fee in disguise. Commercialization of education was not permissible. The court framed a detailed scheme to minimize discretion of private educational institutions in matters of admission and levy of fees.  The Hon'ble Supreme Court in this Unni Krishnan's case has laid down a formula to bring about a partnership between the Public Sector and the Private Sector to work together for the development of higher education. The Government has since developed mechanisms to prevent commercialization and at the same time rope in the Private Sector to provide higher education to its citizens. The meaning of the word life includes the right to live in fair and reasonable conditions, right to rehabilitation after release, right to live hood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Apex Court in the Unni Krishnan's case and the Apex Court itself provided the list of some of the rights covered under

Article 21 on the basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter. 
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance.

It was observed in Unni Krishnan's case that Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life. As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it. Through various judgments the Apex Court also included many of the non-justifiable Directive Principles embodied under part IV of the Constitution and some of the examples are as under:

(a) Right to pollution free water and air. 
(b) Protection of under-trial. 
(c) Right of every child to a full development.
(d) Protection of cultural heritage.

T.M.A. Pai case, 1994

Here the unaided Colleges are privately managed and raise their own funds. The Hon'ble Supreme Court has held that ‘the right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated in 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 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'. This was observed by the Hon'ble Supreme Court in T.M.A.Pai Foundation and others v. State of Karnataka and others.

Article 30(1) postulate that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. The right to administer has been given to the minority, so that it can mould the institution as it thinks fit, and in accordance with its ideas of how the interest of the community in general, and the institution in particular, will be best served. For purpose of article 30(1), even a single philanthropic individual from the concerned minority can found the institution with his own means. A minority institution may impart general secular education; it need not confine itself only to the teaching of minority language, culture or religion. But to be treated as a minority institution, it must be shown that it serves or promotes in some manner the interests of the minority community by promoting its religious tenets, philosophy, culture, language or literature. The court addressed the issue of abolition of capitation fees pose Unnikrishnan and the scheme formulated for the admission of students. With the issue of the right of minority educational institutions pending consideration of a large bench, the court made a few modifications to the scheme to facilitate smoother functioning and gave interim directions. It also directed the Reserve Bank of India to formulate schemes to provide educational loans.

T.M.A. Pai foundation v. state of Karnataka, 2003

An 11 judge bench of the Supreme Court headed by Chief Justice B.N. Kripal held that the state governments and universities cannot regulate the admission policy of unaided educational institutions run by linguistic and religious minorities, but state governments and universities can specify academic qualifications for students and make rules and regulations for maintaining academic standards. The same principle applies in appointment of teachers and other staff. An unaided minority educational institution would be free to hire as it pleased as long as some essential qualifications were adhered to. In this case a number of petitions were filed by the management of minority educational institutions challenging the unnecessary control exercised by the government in various rules and regulations and hampering their progress of quality education. They contended the right in Article 30 which gives them full autonomy in running their institutions. In all the court framed five questions which are to be considered in these petitions

1)      What is the extent of control of state on minority institutions?

2)      What should be the procedure for admission of students?

3)      Will eligibility be confined to minority students or students of other community?

4)      Who is minority and how is to be determined?

5)      Whether these rights are available to minorities only or to other communities?

 

After the 11 judge bench decision in T.M.A. Pai's case it was thought that the controversies regarding minority educational institution was finally settled. But the subsequent events showed different signs. These signs are due to the loop holes in the above said case. It was observed that the principles laid down in T.M.A. Pai's case were so broadly formulated that it gave enough scope to apply those principles in different ways by the High Courts. The result was that the high court was flooded with writ petitions seeking for the settlement of various issues which remained unsolved. The constitution of India extends protection to minorities in different ways. Even though the constitution does not define the term minority it mentions of religious, linguistic and cultural minorities in articles 29 and 30. In India minorities are of diverse kinds given its pluralistic composition and multicultural history. There are religious, linguistic and cultural minorities and minorities possessing special scripts of their own, untouchable, socially and educationally backward classes schedule caste and schedule tribes. Throughout the years the term minority was subjected to judicial interpretation by the Supreme Court and many High Courts and has acquired legal and constitutional connotations which are consistent with the sociological concept regarding minority. It is noted that articles 29 and 30 of the constitution of India is based on culture, language, script or religion should not be compelled by the circumstances to give up their language, script or religion which should not be compelled by the circumstances to give up their culture, script or religion. The right to establish and administer private unaided non minority educational institutions broadly comprises the following rights;

1. To admit students;
2. To set up a reasonable fee structure;
3. To constitute a governing body;
4. To appoint staff (teaching and non teaching)
5. To take action if there is failure of duty on the part of any employees.

 

With regard to the core components of the rights under Article 19 and 26(a), it must be held that 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 with 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. 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 maladministration. Article 30(1) deals with religious minorities and linguistic minorities. The opening words of the Article makes it clear that religious and linguistic minorities have been put on par, insofar as that Article is concerned. Therefore, whatever the unit whether a state or the whole of India for religious minority. India is divided into different linguistic states. The states have been carved out on the basis of the language of majority of persons of that region. For example the state of Maharashtra has been established on the basis of the language (Marathi) of that region. "Linguistic minority" can, therefore, logically only be in relation to a particular state. If the determination of such minority for the purpose of Article 30 is to be in relation to the whole of India, then within the state of Maharashtra, Marathi speakers will have to be regarded as linguistic minority. This will clearly contrary to the concept of linguistic states. If therefore, the state has to be regarded as the unit for determining "linguistic minority". This will clearly be contrary to the concept of linguistic states. 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 citizens 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 interest of the Article mentions about 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 widespread notion that runs through Article 29(1) is 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 majority religion, to conserve their language, script or culture. In the exercise of this right to conserve the language, script or culture, that section of the society can setup educational institutions. The right to establish and maintain educational institutions of its choice is necessarily related to the right conferred by Article 30. The right under Article 30 is not absolute. Article 29(2) provides that, where any educational institution is maintained by the state or receives aid out of state funds, no citizen shall be denied admission on the grounds 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 and administered by anyone, but which is maintained by the state or receives aid from funds of the state. In other words in an ordinary sense, state maintained or aided educational institutions, whether established by the government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language. The right of minorities to establish and administer educational institutions is provided by Article 30(1). To some extent, Article 26(1) (a) and Article 30(1) overlap, insofar as they relate to the administer of educational institutions; but whereas Article 26 gives right to both the majority as well as minority institutions to establish and administer educational institutions.

 

"The majority opinion spread over 30 printed pages, and minority opinion spread over 60 printed pages, both though illuminating and instructive, have none the less not summed up or pointedly answered the questions". So came the P.A. Inamdar and others to appreciate and cull out the ratio decidendi of the two opinions and to examine if the clarification given in Islamic academy runs counter to Pai foundation

P.A. Inamdar and others v. State of Maharashtra, 2005

This case clearly pointed out that "the state can insist on private educational institutions which received no aid from the state to implement the state's policy on reservation for granting admission on lesser percentage of marks i.e., on any criterion except merit (Para 1) and allowed freedom to unaided institution to devise their own fee structure subject to state regulations and thus the unaided educational institutions are blessed with unautocratic benefits; and there is no whisper of the connotation of the spirit of the Directive Principles of State Policy in relation to the state's role to education its citizens
The decision of the Hon'ble Supreme Court in this decision has created ripples in the Educational sector. It has been held by the Hon'ble Supreme Court that Professional colleges would now enjoy full autonomy in admitting students. It has also been stated that in the absence of a State or a Central legislation regarding admissions and fee in professional colleges, the Legislative Committee which regulates admission, procedure, fee structure, etc. shall continue to exist. This case over ruled the decision of the 2003 T.M.A. Pai foundation case. The Inamdar case judgment of 2005 was a logical continuation of the TMA Pai Foundation case on the issue of admissions and administration in minority educational institutions. Interestingly, the Constitution makes special provisions for the minorities under Article 30, to establish and administer their educational institutions. In the Inamdar judgment, the Supreme Court extends the protection awarded to minority institutions to non-minority institutions as well. This is a significant departure in jurisprudence whereby unaided minority institutions have been equated with unaided non-minority institutions. The judgment extends the rights available under Article 19(1) (g) to "practice any profession or to carry on any occupation, trade or business", to non-minority institutions. In the judgment, under the sub-heading Backdrop, education was described as an occupation. Education used to be charity or philanthropy in good old times. Gradually it became an ‘occupation'. Some of the judicial dicta go on to hold it as an ‘industry'. Whether to receive education is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation protected by Article 19(1) (g) and additionally by Article 26(a), if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professionals and a mission in life for some altruists". The judgment also mentions that the State cannot ‘appropriate' seats to provide them to reserved categories that are given admission with lower marks. "So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions, which receive no aid from the State, to implement State policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit".

Bal patil and Anr v. Union of India

Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election". The above definition does not include Disabled and Weaker Section also does not include disabled. The problem is that, even though SC & HC orders and / judgments many a times do not go in favor of disabled because it has no strong base for interpretation in the Constitution of India as the SCs & STs have. As far as the implementation part is concern it is a common problem for every law and its provisions. For Minority, According to this case, "Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election". The above definition does not include Disabled and Weaker Section also does not include disabled. The problem is that, even though SC & HC orders and judgments many a times do not go in favor of disabled because it has no strong base for interpretation in the Constitution of India as the SCs & STs have. As far as the implementation part is in concern it is a common problem for each and every law and its provision and the situation that leads to the formation of such laws by the respected courts irrespective of its hierarchy.

Conclusion

The eleven judge bench in 2002 Pai's case produced an Eastman colour spectrum in which 50% of the issues framed were left for regular bench for consideration and opened the floodgates of litigation. Then came the Islamic academy (2003) with 4 issues to clarify the stand of Pai's case, the Supreme Court is pleased to deal with the legal nuance between ‘special right' and ‘certain additional protection' under Article 30(1) for minority institutions.  While analyzing the concept of right to education to poorer sections of the society, the historical T.M.A. Pai foundation case confused the concept, the Islamic academy case made it complex and finally Inamdar's case has compounded the situation. This case has once again opened the lid of Pandora's Box inviting a repulsive fur ore in our political, social and legal system. This case is a thing of interest, it being a thing of bitter controversy. It reminds us of a quote of Justice V.R. Krishna Iyer, an adjudicator of commoner-

"The myth is that the courts of law administer justice; the truth is that they are the agents of justice. The poor little Indians have been unflinching faith in the judiciary that the fruits of constitutional goals are made available and secured for them. They really rejoiced at many path breaking decisions concerning their fundamental rights. But the recent trends in judiciary caused disquiet in the hearts of the oppressed. "

All the trendy minority decision inevitably generate some basic questions

 

1. 1. Whether the judiciary is obliged to read law in sacred isolation or intertwine legal philosophy with real of life?
2. 2. Whether the concept of social justice is an abstract idealism or a pragmatic constitutional mandate?
3. 3. Whether the DPSP (PART IV) coupled with preambulory promise of "we, the people" permit the revisiting of laissez faire in the field of education at the cost of poorer sections of the society?
4. 4. Whether the judiciary which acknowledged the limitations of Article 37 by reading the DPSP into fundamental rights jurisprudence, is justified in giving primacy to "LIBERALISATION, PRIVATIZATION, GLOBALISATION" doctrine and to support commercialization of education on par with corporate enterprise?
5. 5. If the state withdraws its role in providing higher education to its citizens, what will be its impact on the interests of the disadvantaged sections of the society entitled to constitutional protection?
6. 6. Whether the recent trends indicated through T.M.A.PAI'S case and the other cases which followed it tantamount to judicial progressive thought?
7. 7. Whether the impact of Inamdar's case strikes at very root of legislative powers of the state in enacting a law for the cause of socially and educationally backward classes and minorities?

It appears that the judicial philosophy with regard to the reservations has become unpredictable and uncertain when it is related to the concept of social justice. Part IV   of the constitution dealing with the Directive Principles of State Policy is not an ideological perception but a pragmatic public command. A right carved out of philosophy of this Part IV is no inferior to the rights in Part III of our constitution, and both these eyes shall look at the perambulatory propositions.

 

Our apex court on many earlier occasions has justified that the constitutional connotation in providing specific provisions relating to reservations is in conformity with requirement of social justice and economic democracy as warranted in the preamble of the Indian constitution. In no case right from Chempakam durai rajan to Unni Krishnan and several other cases the Supreme Court never felt that providing reservations for socially, economically and educationally disadvantaged classes is outmoded or authentic to constitution. The field of education has been jealously guarded by the courts in order to accommodate the interests of the under privileged classes.  Rasco Pound says that justice is the totality of values as to human relations initiatively recognized through collective experience. Justice is a multidimensional and everlasting concept of reality and virtue. It is heartening to note Lord Denning's enduring observation that "Justice is not something you can see. It is temporal but eternal… it is not the product of his intellect but eternal. The nearest we can get to defining justice is to say that "it what the right minded members of the community – those who have the right spirit within them – believed to be fair"

With all humility it is submitted that the judiciary is the hope and asylum in a country consumed by corrupt power operators and cunning mega builders.

"Ye are the salt of the earth; if the salt have lost his favor, where with shall it be salted" –The Holy Bible

About the Author

vyshnavi neelakantapillai, student, 7th semester, National University of Advanced Legal Studies.

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