EDUCATIONAL

RIGHTS
CULTURAL AND

of his allegation, namely,

instancos in support
1951. He gave two on
at that
People Act, frorn thc Hindi agitation going
that the appellant toole help the Arya Samaj
(i) and propagated that the respondent w a s a n enemy of
time a religious symbol
CHAPTER 12 and (ii) that the appellant used It w a s furt
and the Hindi language;
er
to Arya Samaj in his election meetings. if elected
Oin Dhwaj" belonging that the appellant made promises that
of the
alleged by the respondent
the c a u s e of Hindi.
Rejecting the
contentions

EDUCATIONAL RIGHTS he would work for

CULTURAL AND Court observed
respondent, the Supreme citizens includes
the right
the language of the
Right to c o n s e r v e Political agitation for
of the language.
to agitate for the protection cannot, therefore,
(Articles 29 and 30) section of citizens
the language of a Section 123(3)
rights. While, conservation of within the meaning of
ci:ltural and educatiornal as a corrupt practice
Articles 29 and 30 guarantee regarded
in thi2 territory be Act, 1951.
section of citizens, residing of the Representation of the People the
candidate, to- work for
to every 30(1
Article 29(1) secures
language, script or culture, Article promises by a
Court held that making
to conserve its own
of India, the right to establish The to corrupt practice.
religious or linguistic minority, the right langunge, did not amount
guarantees to every
e d u c a t i o n a l i n s t i t u t i o n s of
their choice. Conservation of the electorate's
Article 29(1) w a s not subjected
to any reasonable
and administer
preservation Unlike Article 19(1), their language,
29 arid 30, is the recognition and upon tho citizens to conserve
The object behind Articles The fight conferred
with diverse languages and
different beliefs, restriction.
the Court held, had been made absolute
by the Constitution. Section
of the different types of people, Secularism in India, The Supreme Court in etc., m u s t be read subject
of 123(3) of the Representation of
the Peoples Act, 1951,
which constitute the essence under Article
State of Karnataka,' explained the F u n d a m e n t a l Right
T.M.A. Pai F o u n d a t i o n v. the to Article 29(1) and not to trespass upon
than seek to preserve
29 and 30 do not m o r e
Articles form 29(1).
exist, and at the time, unite the people to 29(i) may be exercised by setting up
right contained in Article
same
differences that The
instructions to the children of their
one strong nation. educational institutions and by imparting
own commuyity in their own language."
[Article 29(1)]
Right to conserve language, script o r culture Stute of Punjab,s the Supreme
Court

Clause (1) of Article 29 provides; "Any

section of the citizens residing in In D.A.V. College, Jullundur v. Dev University at Amritsar to
held that the setting up of the Guru Nanak
the territory of India o r any part thereof
having a distinct language, script the studies and research in Punjabi language and
o r culture of its o w n
shall have the right to c o n s e r v e
the same". Article 29(a), promote, inter alia,undertake measures for the development of Punjabi
or culture. literature and to
c o n s e r v e one's own language, script
thus, guarantees the right to language and culture did not infringe
Article 29(1).
must be satisfied-
To clajm this right the following conditions Promotion of the majority language, the Court held,
did not m e a n
thus
claimed by any section of citizens. The right
sa) the right can be or script. To do so would be to trespass
on
to citizens and not to others", stifling of the minority language distinct language or
belongs
the territory of India or the rights of those sections of the citizens which had a
section of citizens must be residing in o w n educational
(bthat script and which they had the right to c o n s e r v e through their
any part thereof,
and
institutions.
that section of citizens must have a distinct language, script or
e)
culture of its own.
Right of a Citizen to admission to Educational Institutions
The "right to conserve" means the right to preserve or
the right to [Article 29(2)1
language, script or culture, thus,
one's own Article 29(2) provides "No citizen shall be denied admission into any
mairntain. The right to
conserve

m e a n s and includes the right to preserve

and to maintain or to work for educational institution maintained by the State or receiving aid out of State
one's own language, script or culture. It
includes the right to work_ for one's funds on grounds only of religion, race, caste, language or any of them." This
own language script or culture and to agitate for the same)D Article guarantees to every citizen the right to admission to institutions
In Jagdev Singh Sidhanti v. Partap Singh Daulta,' the respondent, maintained by the State or aided by the State and no citizen can be denied
the House
a
defeated candidate, challenged the election of the appellant to admission to such institutions on the ground only of religion, race, caste,
on the ground that he had committed corrupt practices
during
of People
communal enmity between the Hindu and the
to promote 4. D.A.V. College, Bhatinda v. State of Punjab, AlR 1971 SC 1731. See aleo D.A.V.
election campaign
Sikh communities prohibited by Section 123(3) of the Representation of the College, Jullundur v. State of Punjab, AIR 1971 sC 1737; Stute of Bombay

AIR 2003 SC 355. Bonbay Education Society. AIR 1964 SC 561; General Secretary, Linguistic Minorities
Protection Comnittee v. State of Karnataha, AIR 1989 Kant Stute of Bombay
AlR 1970 SC 259. 226;
2. Bishop S.K. Patro v. State of Bihar, v. Bombay Education Society, AlR 1954 SC 561.
3. AIR 1965 SC 183. 5. AIR 1971 SC 1737.
388
390 CONSTITUTION OF INDIA CUILTURAL AND EDUCATIONAL RIGHTS

language or any of them. cligibility qualifications from an institution recognised by it. "
of
The right contained in Article 29(2) is available
a citizen
to every citizen India, Article 29(2) and Ist Amendnent, 1951
whether belonging to a minority or majority group. It is a right of In State of Madras v. Champakam Dorairajan,s the communal G.O.
as a citizen and not as a member of any community or class.
to several
allocating seats in medical and engineering colleges in proportion
The a fundamental right, cannot be interfered with by any
right being of Article
communities was struck down by the Supreme Court as violative
instructions,rúles or regulations." 29(2). To nullify the effect of this decision and to ensure advancement ol
the State
In State of Bombay v. Bombay Education Society, sOcially and educationally backward classes of citizens, the
Constitution
Governinent issued an Order banning admission of all those whose language effect
(First Amendment) Act, 1951 added Clause (4) to Article 15 to the
of instruction. The in Article 15 or in Article 29(2) would prevent the State from
was notEnglish into schools having English as medium that "nothing
Order of the Government was struck down as violative of Article 29(2) making any special prouision for the advancement of any educationally an
issued with the object classes of citizens o r for the Scheduled CcLstes (and
The Government contended that the order was socially backward
the Court held that the object Scheduled Tribes".
of proinoting national language. However,
the mode and m a n n e r adopted therein Article 15(4) is added for the advancement and not for abridging the
underlying the inpugned order and
the order from being challenged as rights of the backward classes or of Scheduled Castes or
Seheduled Tribes.
to achieve that object, could not protect
violative of the right contained in Article 29(2).) Therefore, if students belonging to backward classes secured more than
cannot bec
reserved number of seats on their own merit, rule of reservation
in that
When Article 29(2) does not apply invoked to deny them admission over the prescribed numberffor,
admission into educational institutions case, their fundamental right under Article 29(2) would be infringed.
Article 29(2) prohibits denial of caste
maintained or aided
only of religion, race,
by the State, on the groundattracted
not in c a s e s where the Articles 29(2) and 15(1)
or language or any of
them. It is, therefore,
Por the
other than those specified therein. Like Article 29(2), Article 15(1) also prohibits discrimination against
admission is denied on a ground between the two-
institutions are reserved by the State but there significant differences
in the educational citizens, are
example, where seats or domicile or sex°
or on the basis of
(i) While Article 15(1) prohibits discrimination on the ground of
Government on the basis of residence" Article
inhabitants of that State, there would be no violation of religion, race, caste, sex or place of birth, Article 29(2) prohibits
the reed of the
denial of admission to educational institutions aided or maintained
29(2). legal right jn caste or language.
because, as a result of Article 29(2), there
is a
by the State on the ground of religion, race,
Merely the college, would not extends
members of flindu community
to get admission into (ii) Article 15(1) extends against the State, while Article 29(4)
under Article 25 to profess, practise freely well others, i.e., educational institutions
that there is every right run by a against the State as as but
mean
and propagate their religion,
of the within the precincts college maintained by the State or
those belonging to private persons
minority community, educational
getting grants-in-aid from the State.
admission into (iii) Article 15(1) protects all citizens against discrimination generally,
29(2) be invoked for seekking
cannot aid in Article
Article
from the State.12 The term while Article 29(2) is a protection against particular species of
institutions getting no grants-in-aid the grants made denial of admission to educational institution
the Government, including wrongs, namely,
29(2) c o v e r s grants
made by autonomous
the Court cannot compel
an
aided or maintained by the State.
under Article 337.13 Again, c a n d i d a t e not holding
the requisite in its operation than Article
to grant admission to a (iv) Article 15(1) is more general and wide
institution, Article 29(2) is not
29(2). It would apply and cover the area when in an
applicable. For example, the refusal to admit
Madras someane
AIR 1954 SC 561; State of
Education Society.
6. State of Bombay v. Bombay educational institution on the ground of sex or place of birth does
AlR 1951 226.
SC
Article 29(2) but would be invalid under Article 15(1).
suprd,
. Champakam Dorairajan, 1951 SC 226. For
facts see
offend
Madras v, Chanmpakam Dorairaja AR University, AlR 1989 P. & not
7. State of Education Socityv. Punjab
S.D. College Educational
156. Seo also
Right of Minorities to Establish and Administer
H. 164. Institutions [Article 30(1)]
8. AlR 1954 SC 561 1958 Ker. 33. whether based on religion or
AIR
Article 30(1) provides "All minorities
.Joseph Thomas
v. State of Kerala,
Shantha Bai, AIR 1954 Mad 67 shall have the right to establish and administer
educational
10. University of Madras v.
Paul's College, AIR
1957 Cal 524. language,
Principal, St. Singh Sidhu v. JT 2003 (3) SC 238.
Sanjib Kumar 1987 P & H 227; Gurpreet Naseem v. State of Haryana,
v.
11.
of Punjab, AIR
State 14.
12. Asha Gupta
v. 15. AIR 1951 SC 226.
H 70.
AIR 1983 P & Article 337 contains special AlR 1958 AP 129; Ranna Krishan Singh v. State
Punjab University, 1958 SC 956. 16. Raghu Ramulu v. State of A.P.,
Kerala Education
Bill, 1957, AIR the benefit of
Anglo-Indian
supra, 192.
13. In Re o cducational grants for of Mysore, AlR 1960 Mys 338. See also
with respect
provisions
community.
 393
FDUCATIONAL
RIGHTS
CULTURAL. AND

the Apex Court

CONSTITUTIUN (F INDIA Education
Bill3" case,
Kerala
S t a t e law, the
unit to
192 Subsequent to the regard to
a

Article 30 further provides

: "The held that w i t h be the State.4
c a n only
i n s t i t u t i o n s of their
choice". Clause (2) of discriminate has consistently or linguistic
minority, Constitution
in granting aid to educational
institutions,
under the determine á religious a
Státe of Karnataka,25 c o n s i d e r e d the
State shall not, that it is Foundation v.
educational
institution on the ground
o r language".
TM.A. Pai learned Judges of the Supreme Court of
against any whether based on religion eleven since the reorganisation
management of a minority, minorities "the Bench of It has been held that
fundamental issue again.
determining
to all linguistic
and religious
lines, for the purpose of
Articie 30(1) guarantees i n s t i t u t i o n s "of been o n linguistic
administer" educational the States in India has of India.
"the right to and not the whole
right to establish"
and
30(1) is available only
to
unit will be the State
contained in Article the "minority, the Court expBained that "minority"
The right the Apex
their choice".
on relgion o r language. Bal Patil v. Union of India, signified an
i d e n t i f i a b l e group of
minorities whether based for minorities scheme
from constitutional
deserving protection froin likely
nature of protection a s understood
Article 30 is held to
be m o r e in the e n s u r e equality with who w e r e seen other
from regulatory
control." It is to
people or community cultural and e d u c a t i o n a l rights by
and is n o t immuned position, their religious, to gain political
not i n t e n d e d to place
them i n a more advantageous
deprivation of. in majority and likely
minority and communities who happened to be elections.
G o v e r n m e n t based on
VS-a-LS majority.'8 the purposes democratic form of
that a minority, for power in a Foundation case,27
The word 'or' in
Article 30(1) indicates have mado in T.M.A. Pai
o r religious
and that it does not Reiterating the observations to be don
either be linguistic as minority, has
of this Article, may and linguistic identification of a community
Article 30(1) concerned, religious the Court held that Government has to be exercised
In so far a s The power of the Central
!°
to be both. on a State basis. Commission
at par.20 of the National
minorities have been put advice and r e c o m m e n d a t i o n s
not merely on the of the social, cultural
and religious
for Minorities, but on consideration
Minority Coristitution. Literally, it means
in each State.
is not defined in the represent conditions of the community to 'Education', in List
III of,
The term 'ninority' term and is réferred toto insertion of, ney Entry 252 relating
It is a relative Kerala The Constitution (42nd Amendment) Act,
1976,
groups.2 Inpé the
n o n - d o m i n a n t group.
a o r Seventh Schedule the by
numbers, sections
the with respect to
the s m a l l e r of
two
observed that while it
w a s
easy to say Parliament to ldgislate in relation to "education",
the Supreme Court than 50% enabling a particular State,
of States or e v e n with respect to
Bill,22 less
Education which w a s numerically
m e a n t a community
entire population
of India whole of India or group has not, in any way, changed the position. The
that the minority w a s 50%, of what-the in the Apex Court ruled, could not have
the important question might be in majority of Article 30, the Court has ruled,
State or of a part
thereof ? A community
community having "minority" for the purpose who w a s legislating.
o r of a whole of India. A different meanings depending upon
be a minority in the there, though it may the Debates in the Cornstituent
State, but it might of the State
would be a majority The Court referred to the Draft Articles,
c o n c e n t r a t i o n in a part State is to be taken, viz.,
If a part of a amendments made to the Constitution,
the State a s a whole. would be Assembly, the subsequent
be in a minority
in and what unit the Court said, show
Articles 350A, 350B,23 which in unambiguous terms,
draw a line
where to
question would be
ward.
municipality or its to be determined, on the basis
then the consideration-a district, a town, a
Court observed that minority status of a group of persons had
taken into the Supreme Union Territory.30
matter definitely, of populationof a State or
Without deciding the in relation to
the particular been put at par
determined only Since both the religious and linguistic minorities have
tHat minority
was to be
If it w a s a the State law, a minority the Court ruled that the position with regard
to the religious
which w a s being challenged. State. Where a
law in Article 30,
legislation population of
in relation to the whole of the State,
minority
ould be determined State Legislature
extends to the
b e " d e t e r m i n e d by
reference to 23. AIR 1958 SOC 956. SC 1731; D.A.V. College v. State
passed by the would 24. College v. State of Punjab, AIR 19711
See D.A.V.
Articles 29 and 30 r e Kerala
the purpose of it w a s held in of Punjab, AIR 1971 SC 1737.
for population of
that State. Accordingly,
Indians would be batch of over 200 petitions which w e r e
25. AIR 2003 SC 355. The Bench heard
a
the entire Muslims and Anglo
that Christians, pending in the' Apex Court for more
than 10 years.
Bducation Bill, Kerala.
minorities in the State of 26. AIR 2005 SC 3172.
T.M.A. Pai Foundation
v. State of Kar1nataka, AIR 2003 SC 355.
2005 SC 3226.
27.
State of Maharashtra, AIR Patil v. Union 28. Entry 25 relates
"Education", nt all levels.
to
17. P.A. Inamdar v.
(2007) 1 SCC 386; Bal, 29. Per Justice V.N. Khare, 423. While Article 350A requires the States to provide
v. T. Jose,

18. Malankara Syrian Catholic College facilities for instructions in mother tongue at the priinary stago of education Article
3172.
AlR 2005 SC AIR 1971 SC 1737.
of India, Jullundur v. State of Punjab, 350-B provides for the appointment. by the President of a Special Officer for
DA.V. College, AIR 2003 SC 355.
19. Karnataka,
State of Justice S.M.
linguistic minorities.
Foundation v.
T.M.A. Pai AIR 2003 SC 355, per
20.
21. T.M.A. Pai Foundation v. State of Karnataka,
under
30. T.M.A. Pai Foundation State of Karnataka, AlR 2003 SC 355. See also Association
v.
of Teachers in Anglo-Indian School v. Association of Aids of Anglo Indian School,
Quadri, 441. question as to who constituted
a minority Apex AIR 1995 Cal 194; State of W.B. v. Daughters of the Cross, 88 CWN 766; State
956. Tho crucial Constitution Bench of the
1958 SC 11-Judge of Bombay v. Bombay Education Society, AIR 1964 SC 661.
2AlR discussed before an

Article 30(1), is being 1.

See the Pioneer, April 12, 2002,
Court.
394
CONSTITUTION OF INDIA CULTURAL AnD EntICATIONAI. RIGIITS
minorities was similar.
minority bascd and such not entitled to the fundamental
It has thus, been held that for the purpose of
on
right under Article 30(1).
religion as were

whether determining the minoriy,

linguistic or
religious, the unit will be the State and not the
of India.
whole The "Theosophical Society" has been held to be neither a religious nor

alinguistic minority and a school established by the Society, therefore, was

not held entitled to the protection of Article 30(1).37

Jinguistic Minority Although, Article 30(1) does not speak of citizens of India, however, it
A linguistic minority for the purpose of Article 30(1) is one which must
has been held that the minority to claim the protection of this Article must
have separate spoken language
a and that language need not have a distinct be a minorily of persons residing in the territory of India Therefore, the
script. In India, a number of languages are spoken having no seript of thcir oreigners, nol resiclents in India, cannot claim the right to set up educational
own. And, people speaking such a lauguage having no script of its own, institutions of thcir choice.
constitute a linguistic minority for the purposes of Article 30(1).3 A linguistic
In St. Stephen's College v. University of Delhi," the Supreme Court
nirority is to be determined with reference to the language spoken by the i n e a n those
has ruled that minorily under Article 30(1) would necessarily
community. and not with reference to any other language which the
who formed a distinct and identifiable group of citizens of India.
community wants its children to study the minorities
A community whose language is one of the official languages of the
Article 30(1) confers two rights on

(a) right
the to establish educational institution; and
an
State, can, as yet, be a minority community. Thus, only because English is
one of the official languages of the State of West Bengal, the same does not (b) the right to administer the institution so established.

mean that the Anglo-Indian community whose language is English, cannot

Right to Establish Educational Institutions
be termed to be a minority community.
Article 30(1) guarantees to the minorities the right tq establish
educational institutions ef thein choice.The word "establish' meahs to bring
Keligious Minority It does necessarily connote construction of thelinstitution
A minority based religion
on means
that the only and principal basis to existence. not
by the minority. A school previously run by some other organigation, was
of the minority must be adherence to one of the many religions and not a taken over by the Church, which reorganised and managed it to cater to and
sect or part of the religion. Catholics. The school
in conformity with the school a s established by Roman
A minority based on religion should be restricted only to those religious was held to have been established by the Roman Catholics for tHe purposes
minorities, for example, Muslims, Christians, Jains, Buddhists, Sikhs, etc of Article 30(U40
Hindus.3
which have their identity separate from the majority, namely, the the first five trusteas
Thus, Jain Swetamber Terapanthi Sect is Held to be a religious minority In Ipdulal Hiralal Shah v. S.S. Salganokar.
of aninstitution established by a Gujarati, all Gujarati speaking. were
since it possesses a faith different from the Hindu religion. Likewise, Jains the office for their lifetime. The medium
and Sikhs have been held to be based
minorities religion
on within "the appointed under the deed, to hold80% teachers were also Gujarati speaking.
f instructionn was Gujarati and
meanings of Article 30(1) in the Union Territory of Delhi.35 It w a s held by the Bombay High Court that the institution belonged
to the
The Supreme Court in Bramchari Sidheswar Shai v.. State of
West to the protection of Article 30(1).
minority community and entitled
from
Bengal.36 held that Ramalkrishna religion was not distinct and separate The to establish under Article 30(1) m e a n s the right to
right establish
citizens of India, who
Hindu religion and not minority religion. Therefore,
could not claim to belong to a
real institutions which will effectively serve the need of their community
and
.are the followers of Ramakrishna religion the scholars who resort to them. The minority is not required
to seek prior
institution."
AIR 1971 SC 1737. permission for the establishment of a n educational
Jullundur State of Punjab,
31. DA.V. College,Teachers v.
whole community must been have
32. Association off in Anglo-Indian School v. Association of Aids of Anglo-Indiun" (Article 30(1) does not require that the It might be
School, AIR 1995 Cal. 194. involved in the establishment of the educational institution.
with his own m e a n s in the
33. 1bid. Recently in Bal Patil
v. U.O.l., AIR 2005 SC 3172, a three-Judge
Bench of established even by a philanthropic individual
entitled to the protection of
the Supreme Court ruled that the
so-called minority communities like Sikhs and interest of the minority community, it would be
been
Jains w e r e not treated as national
minorities, in fact, there had throughout
which had different gects, sub-sects, Pat 197
treated as part of wider Hindu community 37. Janki Pd. v. State of State
Bihar, AlR 1974
and religious philosophies. The Court explained that SC 259.
faith, modes of worship 38. Bishop S.K. Patro v. of Bihar, AIR 1970
faith of. India whereas
Hinduisn could be called general religion and c o m m o n 39. AIR 1992 SC 1630.
formed on the basis of quintessence
of. Hindu religion.
Jainism was a special religion like 40. A.M. Patroni v. Asst. Education Officer, AlR 1974 Ker 197
reformist movement amongst Hinduis1m,
Jainism has been held to be
a
41. AlR 1983 Bom 192.
or Lingayats.
Brahamsamajis, Anyasamajis
W.B., AIR 1982 Cal 101. 42. In Re Kerala Education Bill, AlR 1958 SC 956.
34. Sree Jain Suwetamber Vidyalaya
v. State of. Socio Literati Advancement Society, Bangalore v. State of Karnataka, , AlR 1979 Kant
1976 Del 207. 43
Education, Delhi Admn., AIR
35. A.S.E. Trust v. Director, 217.
36. AIR 1995 SC 2089.
 RIIITS
397
EDUCATIONAL
CULTURAL AND
cCONSTITUTION OF INDIA Clauses 2(1) and
S t a t e of IPunjab,52
J u l l u n d u r v.
1969, required
fact that the school w a s founded by
a In D.A.V. College, Nanak Universily Amrilsar Act,
Article 30(1)." However, the m e r e of the Guru have, a regularly
did not make it a minority 17 of Chapter V Samajis should
person belonging
to a particular religion,
that the College
established by the Arya more than
20 p e r s o n s , approved
not
consisting of of the
institution."s
in setting constituted governing body, others, two representatives
obtained from abroad for assisting Senate and including
among Clause 17 provided
Again, where funds were
minority in India, by the the College, cx officio.
school, which w a s established by
a
up and developing
a the Principal of changes made therein,
w a s carried on at times by s o m e persons who w e r e University and well a s subsequent
(or that the. management
the school the protection of that tho staff initially
appointed a s
Supreme Court the The held these
a ground to deny to right of
Vicc-Chancellor.
not born in India, cannot be the
by i n t e r f e r e d with
Article 30(1).
would be. approved of Article 3O(1)
since they
provisions as violative their educational
institution.
to be such simply because it administer
Also, a minority institution does
not cease to Jesus
the religiousminority petitioners, a
receives aid from the State."" Likewise, the fact, Gujarat,i the
State of
imparts general education or non-Christian Headmaster does InSt. Xavier's College
v.
of Arts and
running the St. Xavier's College e d u c a t i o n to
that the school w a s successively having established
a were

lead to the conclusion that it

w a s not by the Christians.5 Sockety of Ahmedabad, with the objuct of providing
higher
University
not in A l h m e d a b a d a l l i a t e d to the Gujarat
Commerce The College w a s amended in 1972 by
Educational Institutions Christian students, 1949. The Act w a s
Right to Establish Professional Karnataka," under the Gujarat
University Act,
Act, 1972.
Section 33A of the
The Apex Court in T.M.A. Pai Foundation v. State of University
(Amendment)
University,
.

has oerved that the expression

"education" means and includes education the Gujarat Act provided that every College affiliated to the
The Amendnment which would include
school level up to the post-graduate level. of a governing body
a al levgls from the primary
institutions", the Court said, meant institutions that
should be under the management
nominee
representatives of
of the University,
exprission "educational its members, a Selection
hereinabove. amongst of the College. The
"education" w a s as understood students
imparted ucation, where the Court said teachers, non-teaching staff and the members of the Staff,
Emphasizing the words "of their choice" in Article 30(1),
on of the, Principal and
institutionns Committee, for recruitment Section
professional educational Vice-Chancellor of the University.
that these words indicated that even
include a nominee of the
of the teachers
was to the approval by the University
would be covered by Article 30. 41 of the Act further required member of the
that no
Established by the Minority the College. Section 51-A provided removed o r reduced
to Administer Institutions appointed by should be dismissed o r
Right for the purposes of Article 30(1) teaching and non-teaching staff
of the charges
The words "establish" and "administer" in which ho had been informed
shall have the right in rank except after a n inquiry so imposed
must be read conjunctively. It
m e a n s that the minority of being heard. The penalty
that institution w a s and afforded a reasonable opportunity 52-B provided
educational institution only if the Vicu-Chancellor. Section
to administer the approved by
was required
to be the governing body and the members
established by it,.50 for thereference of any dispute betwcen
been held to
educational institution has Committee consisting of a nominee
the
an arbitration by member
a
The right to administer of the tcaching staff, to conterned and a n umpire
mean the right to manage and conduct the affairs
effectively the institution. of
each of the governing body and
the
of external
That, the management the affairs of the institution must
of be free appointed by the.Vice-Chancallor.
mould the institution a s
that the founders or their nominees, can that the provisions coulcl not be applied
held above
control, so
of best interest
the of The Supreme Court
they think fit and acordance with
in ideas, how their since these abridged their right to
in particular, will be served.l to minority educational institutions
the community general and the institution
in AIR 2002 SC
administer the educational institution.)
School v. Commr. & Secy. G.E. Deptt., of the College was a part
44. Manager, St. Thomas U.P,
Nanak Education Trust, AlR 1987 Cal 232; A./g Christian
The Court emphasised that the governing body
756: State of W.B v. Guru administer meant the right to "conduct"
State of A.P., AIR 1986 SC: 1490. of its administration. The right to
Medical Education Society exercised
the in.stitution and this right could be
v.
Ker 87;
45. Rajerashi Memorial Basic Training
School v. State of Kerala, AlR 1973
and "manage" the affairs of
founder had faith and confidence.
All Kerala Unaided Recognised
Schools Parcnts' Association, Aluva v.
State of Kerala,
through a body of persons in whom the
in personal of management was, therefore,
a part of the
AIR 2000 Ker. 339. The choicc the teachers of its
46. Bishop S.K. Patro v. State of Bihar, AIR 1970 SC
259.
administration/The right also included the right to choose
47. Jugal Kishore v. State of Assam, AIR 1988 Gau 8. choice.
Educational Officer, AIR 1974 Ker 197.
48. A.M. Patroni Asst. of the Gujarat University (Amendment) Act,
The impugned provisions
v.

49. AR 2003 SC 355.

1972, the Court had the effect displacing the of management and
Basha Union of India, AlR 1968 SC 662. Seo also supra, Artjele 26. held,
Rev. Father Proost v. State of Bihar, AIR 1969 SC
Azeez v.
50.
51. St. Xavier's College v. State of Gujarat, AIR 1974 SC 1389; Md. Joynal Abedin v.
52. AIR 1971 SC 1737. See also AlR 1963 SC 540; In Re Kerala Education
1990 Cal 193.
State
465: Sidhrajbhai v. of Gujaruf.
State of w.B., AIR Bil, 1957, AIR 1958 956, Stnte of Kerala v. Very Reu. Mother Provincial, AlR
SC
1970 SC 2079.
53. AIR 1974 sC 1389. Sve also State of Bihar v. Syed Asad Raza, AIR 1997 SC
2425.
 CULTURAL AND EDUCATIONAL. RIGHTS
CONSTITUTION OF INDIA
98
it to different agency. Hence, the provisions were not to be and merit-based
entrusting a
Irum
to the minority educational institutions. Apex Court thus insulates tunaided minority institutions
The
applied State or University, except for the sake of
possible interference from the
to be governed
Right to Establish and Administer-Not Absolute transparency and excellence. Such institutions are required
not be subject merit due primacy in admission policy. It has also
giving
Though, the right conferred by Article 30(1), strictly,is may
in an open manner,
an unaided private
is well that the right not absolute. The boen ruled that the administration and management of
to reasonable restrictions,5« it as
educational institution, cannot be taken over by the State
of
T.M.A. Pai Foundation v. State
majority of the Supreme Court in framed in the national înterest must
Karnataka,* held that any regulation whether run Aided Minority Institutions
necessarily apply to all institutions, by the majority or the aid would
The minority educational institutions receiving Government
minority. The Court observed under the purview of
framers of the Constitution not lose their minority character, but they would come
It is difticult to comprehend that the come into play. While
linguistic State regulation. In their case Articles 28 and 29(2)
have given such an absolute right to the religious ot instructions in educational
would them to establish....institutions in
a
Article 28(1) prohibits imparting of religious
minorities, which would enable institutions maintained out of State funds, Article 28(2)
secures
the right to
in conflict with the other Parts of the Constitution.
manner so as to be the establishment..of educational
a person studying in a State recognised institution or in an dducational
It is difficult to accept that in institution receiving aid from State funds, not to take part in any religious
no law of the land, e v e n the
1nstitutions by the..minorities, instruction, if imparted by such institution, without his/her consent.
Constitution is to apply to them.
Court said In TM.A. Pai Foundation v. State of Karnataka," the eleven Judge
a r e unqualified, the:
Dven though the words of Article 30(1) :laws of the Constitdtion Bench of the Apex Court ruled that a minority in.sqtuton did
Article had been held subject to
that, the right conferred by this There would 4 cease to be a minority educational instilution, the moment t received
and standards of education. not
land pertaining to health, morality ' 'a reasonable extent
observed, as, to why regulations or conditions government aid. Though, it would be required to admit a
be no reason, the Court should not of non-nminority students, that would not substantially impair the rights
welfarc of the students and teachers,
concerning. generally the would not in under Article and the Governmen/University interferenc
30(1) would be
institutions. Such provisions
be made applicable to minority administration or management
under
minimum, necessary to maintain standards and to provide some
with the right of
any way interfere representation for non-minority students.
Article 30(1).
issued a rider and said that government
The Apex Court, however; of the institution or Right to Choose the Principal/Headmaster
could not destroy the minority character The right of the management of a minority educational institution to
regulations illusion.
make the right to establish
and administer a mere as the PrincipalHeadmaster of the
choose and appoint any qualified person insulated cover of
institution, has been recognised as the
well by protective
Unaided Minority Institutions
T.M.A. Pai Foundation
v. State of Article 30(1). The State can regulate the appointment by prescribing requisite
The Supreme Court in and 29(2) qualifications, but, the right to appoint candidate of its choice, from amongst
considering Article 30 alon gwith Articles 28
Karnataka,5" after State aid. qualified candidates, shall be with the management. "
from those receiving
unaided minority institutions It has been held in N. Ammad v. Manager, Emjay High School,o
distinguished unaided minority institutions
in favour of freeing the
The Court s e e m s to be or Government, -byy
that this right cannot be chiselled out through any legislative act or executive
from the relevant University
from po8sible interference
forbidden from meddling
with the affairs rule except for fixing up the qualifications and conditions of service tor the
making it clear that the latter was that such institutions would have post.2
of the former. However, the Court
conceded prescribing Heudmaster/
which could be ensured through Highlighting the importance of the key role which a

to maintain academic standards, for stüdents. Though, the. reiterated with

teachers and minimum eligibility
Principal played in the School/College, the Apex Court
qualifications for institutions could
unaided minority
admission of students to 38. L.7.T. College of Eng. v. State of H.P., AIR 2003 SC 3629, J.G Educational Trust
procedure for must be transparent
at all by a State or, University, but;it V. Commr. & Sec. to Government Higher Education Dept., AIR 2003 SC 1614.
not be regulated
with any subjective
clause nor it is subject 59. AIR 2003 SC 355
Article 30(1) does not open See Justice 60. Malakara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386, Brahmo Sannaj
54. It is because the right to limitations.
the effect of subjecting Karnataka, AIR, Ed. Sociely v. State of W.B., AlR 2004 SC 3358.
Lo any proviso, having Poundation v. State of
observations in T.M.A.
Pai
S.M. Quadri's 61. AIR 1999 SC 50. See also State of Bihar v. Syed Asad Raza, AlR 1997 SC 2425.
445-46.
2003 SC 355 at 62. See also Brahmo Sainaj Ed. Society v. State of W.B., AIR 2004 SC 3358, T.M.A.
55. AIR 2003 SC
355. the rights under Article Pai Foundation v. State of Karnataka, AIR 2003 SC 355; Shainda Hasan v, State
Court has held that
50 years, the Supreme State of Gujarat,
of U.P., AIR 1990 SC 1381; St. Xavier's Society College v. State of Gujarat, AIR
56. For the past See also St.
Xavier's College v.
30(1) a r e subject
to restrictions. 1974 SC 1389; Sidhrajbhai v. State of Gujatat, AlR 1963 SC 540; In Re Kerala
1389. Education Bill, AIR 1958 SC 956.
AIR 1974 SC
355.
57. AIR 2003 SC
 FIUCATIONAL RIGUTS
ULTURAL AND

TION OF INDIA actual management

ONS77T cannot bo deprived of the
the Although, the minority the of functioning of its
St. Xavier's c a s e . " The nine-Judgo Bench of but law regulating
a
manner the
under Article 3O(1).
updn the of its institution,
approvai the docision
in
had observed that it
was violntive of the right
St. Xavier's case would not be
nianaging body had ruled
Supreme Court i n
College that the tone
and temper ot an
educntional
Public
the
School case, Apex Court
Pincipal and
teachers of a
and to have the In Frank Anthony of Education before
right to choose the principal approval of the Director
n s t i t u t i o n depended. "The alter a n overall that a provision requiring prior be dismissed, removed o r
teachers appointed by
the management private school could
teaching conducted by philosophy", the
Court said, w a s perhaps
the
an employec of a recognised to the minority
institutions. It was

of their outlook and cducational nstitution in rank, would be inapplicable

assessment
administer an reduced UNAIDED MINORITY INSTITUTION
facet ot tAe rght to Bench ot the of an
bar for
c o n e l u s i o n s ot the Division
case
most innportant there would be no
The Court
concurred with the tollowing
of Kerala"" : The aforesaid decision would
indicate that of
C.E. Agency v. Stuto ensuring a standard
High i n Manager,
Court
Government to have regulatory measures
for
Re ala
to administer a n educational institution the m e a s u r e s conferring
The right of the minority whonm they c:an repose cxccllcnce of the institution. But, so-called regulatory for
ot a person in without indicating any guidelines
ot requires the presence
its choice
directions, and to
whom they c a n power on any specified authority 14 of the
will carry out their the provisions of Article
that power, would offend
contidence, who the cfticiency ot Cxercise of of the
traditions, discipline and arbitrary inroad into the right
to maintain the is and would amount to a n
look forward
position of the Headmaster Constitution observations
the pivotal its administering its institutions. These
the teaching. When of
once
to appoint a person of the
minority in matter
right v. Girdhari
recognised, it has
to be held that the
any are made by the Apex Court
in C/M St. John Inter College
importance to the minority, of a blanket power on the
choice a s Headnma_ter
is of paranmount
prescribing qualifications Singh.8 The Court ruled that the conferment
(otherwise than by of control of the employer-minority
nterference with which
a d m i n i s t r a t i o n of its content, authority would interfere with the right
denude the right of control o v e r the employees
and experience) will institution in the matter of exercising disciplinary would
without the grain. on competent authority
reducing it to nmere husk, of the institution. Such uncanalised power
control of managing
to a n inroad into the power of disciplinary
Action ****Tantdntount
Right t o take Disciplinary includes the right to committee of minority institution, the Court held.
educational institution the Supreme Court
In T.M. Pai Foundation v. State of Karnataka,*9
administer an
The right to tcachers and other employees.
:ake disciplinary
action against the of the has reiterated the existing law on the question
of right to take disciplinay
w a s the Principal
St. Lewina.s6 the appellant and other staff. The Court has conceded that tht
In Lily K u r i a n v . Ernakulam. The College w a s action against the teacherswould be free from in
Joseph Training College for women,
to the Roman
C a t h o l i c Church
ight of, the management governmental interference
St Society of Nuns, belonging of penalties for proven misconduct.
e s t a b l i s h e d by a
the University of
K e r a l a . T h e appellant
w a s found guilty
disciplining employees through imposition would be
and was a f i l i a t e d to the charges against
her w e r e Where allegations of misconduct a r e made, the Court ruled that it
and
of misconduct. An inquiry w a s held
being the President of
imperative that a fair domestic enquiry was conducted. It would be only on
the head of the, Society
result, 33(4) the result of the disciplinary enquiry that the management would
sustained. As a
dismissed the appellant. She invoked Ordinancemake a n
the basis of to
be entitled take appropriate action. The Court held that there would be
Managing Board, entitled a teacher to
Act, 1957 which taken by the why the management of private unaided institution should seek
.ssued under the University
a
V i c e - C h a n c e l l o r against any
disciplinary action no r e a s o n
betore taking any
appeal to the educational institution.
On appeal, the the consent or approval of any governmental authority
the minority
managing body of such action.70
Management
and directed the
the order of dismissal
Since, the aggrieved party normally would approach a Court of law
Vice-Chancellor quashed to
to function as Principal. held that it seek redress, the Court opined that in case of educational institutions,
to allow the appellant Ordinance 33(4) and
struck down the decided speedily
The Supreme Court under Article, 30(1). The Court
held disputes between the management and the statt, should be
violative of the
minorities' right
to m a l a d m i n i s t e r
and Apex Court
and without the excessive incurring of costs. For this purpose, the Educational
did not include the right
was
administer on
the has directed the setting up. in each district in a State, an
that the right to power. But, conferring
to the State regulatory would directly interfere to teacher of aided
enable the aggrieved or unaided institution, to
that it w a s subject
" u n c a n a l i s e d and unguided"
power Tribunal, could be presided over by a Judicial1
ice-Chancellor
control of the management
of a minority
educational file an appeal.
Till then, the Tribunals
Officer of the rank of District Judge
ith the disciplinary
institution o v e r its
teachers.
It has also been held that for giving eftect to the objectives for which
of Gujarat,
AlR 1974 SC 1389 Employees' Association Union of India, AIR 1987
63. St. Kavier's Society College
v. State
67. Frank Anthony Public
SC 311.
School v.

1990 Kerala 356. Gandhi Faizenn College,

in AIR 2001 SC 1891. Sce also Lilly Kurian
64. AlR
also Krishna Iyer, J.'s dissenting views
1976 SC 1821.
68 v. St. Leuoine, AlR 79 sC 52.
65. See of Agra, AIR M.C. of 69. AlR 2003 SC 355.
Shahjahanpur
v. Univeraity State Madarasa Education Board v.
70 These observations were relied on in C.K. Junior Higher Secondary Bal Vidya
also Bihar A.l. Schuol .

AIR 1979 SC 62. 8ee of Teachers in

66. 1990 SC 695; Association Mandir v. U.P., B.S.P., AIR 2006 SC 2974.
MHA College, AIR AlR 1995 Cal 194
School,
Association of Aids of AI.
 CULTURAI ANID EDUCATIONAL RIGHT:s
402 CONSTITUITION OF NDIA

applicable to
The Supreme Court held that the impugned Rule was not
the
institution was established, the management can lay down their O the educational institutions. Since the permission was refused not
code of conduct to be made applicable to the management, teaching S minority or discipline
observations of the Apex on the ground of any apprehcnsion ur deterioration of morality
non-teaching staff and the students. Referring to the if co-education was permitted in the school but mainly in the interest of
the
M.G.U. Kottayam,
Court, the Kerala High Cuurt in Sojan Francis v. to the
contained iu the college calendar dealing with general Cxisting Muslim girl school, it violated the freedom guaranteed
upheld the guidelines minority to administer educational institutions of their choice.
that guidelines banning political
discipline in the college. The Court ruled the Delhi
activities within and forbidding students from organising or
campus
Again, in St. Stephen's College v. University of Delhi,7
University issued Circulars for admission to B.A. and B.Com. Cou:ses
to
were valid, legal
ones within canpus
attending mecting other than official
and in consonance with Articles 19(1)(g), 29(1), (2) and 30(1).2 Colleges affiliated to this University. A Circular issued on June 5, 1980
to Delhi
required that admission to B.A. Courses in all Colleges affiliated
Right to Select Students for
Admission University, would be based on the merit of percentage of marks spcured by
administer educational institutions of their students in the qualifying examination.
The right to establish and The Supreme Court by majority of 4 to 1 ruled that the St. Stephen's
with a view to protect them in respect
choice was secured to the minorities
culture. The right to regulate admission of College was not bound to follow the University Circular as it would deprive
of their language, script and facet of the
students to educational
institutions so established, is a n essential the College of its minority character. The right to glect students for
institution." Therefore, any regulation which admission, the Court said, was a part of administratjon. Tt is ndaed
an
administer the it is
right to
would be violative of Article 30(1), unless
important facet of administration. However, it is not free iromesilation.
interferes with this right of education for the
institution a n effective vehicle But the regulation must be reasonable and should be conducive.to the welfare
imposed for making.the
who resort to it.
ather persons, of the minority institution or for the betterment of those who sart to it.
minority comúnity or petitioners the were The Court held that unless some concession was provided to Christian
In Sidhrajbhai v. State of Gujarat, , the College at Ahmedabad, students, they would have no chance of getting into the College estaslished
Training
Brown Memorial
managcment of the Mary Government issued a n
minority. The Gujarat by their Community. "In view of the importance which the Constitution
established by the Christian for the nominees measures to minorities under Article 30(1", the
Court
in the Training Colleges attaches to protective
Order, reserving 80 per
cent seats that refusal to admit the
The Order further provided said, the minority aided educational institutions were entitled to prefer their
of the Government. result in withholding community candidates-to maintain the minority character of the institutions,
the Government would
candidates nominated by The Supreme
of grants-in-afd to
such institution. subject of course, in conformity with the University standard. The Court,
of the minority 50
recognition and to stoppagc undamental right thus, held that the minority aided educational institutions might reserve
Order violative of the must and they should make available
Court held the Court said that
State regulations per cent seats for their community candidates
Article 30(1). The educational at least 50 per cent seats to other community candidates to be filled purely
guaranteed under must be regulative of
in order to be valid, vehicle of
be reasonable. These, the institution a n effective on the basis of merit.
conducive in making
character and However, the minority educational institutions cannot adopt
community. the to
education for the minority Kerala,6 the appellant, their own method of selection to fill 50 per cent seats belonging
Government of
Trivendrum for Boys, applied their community students.
v.
In Marlk Netto School,
Roman Catholic Mission students in their
In T.M.A. Pai Foundation v. State of Kerala," the Supreme Court
manager of a to admit girl
Authorities for permission under the Kerala
to the
Educational
to be obtained held that while the minority educational institations were permitted to draw
was required sanction mainly on students belonging to that minority to the extent of 50 per cent sents even
School. The permission Authorities refused to give
1959. The community students, must be
Education Rules, by going downthetho merit list, the minority
two grounds, namely school and was not admitted on is inter se merit determined o n the basis of
bas of
School was purely a boys a s is adopted for selecting students belonging
test
to
the said common/joint entrance
(1) that school; and
established a s a co-educational Muslim
general categories.7s
in a nearby
for the education of girls The fundamental issue relating to admission of students to minority
that there was facility radius of o n e mile.
(2)
again considered by the Apex Court in T.M.A. Pai
within a
school situated SC 2914. institutions was
girls Singh, AIR 1997
lHarpal Singh
v.
Devinder
1064; Sathyavan Foundation State of Karnataka,79 The Court emphatically declared that
v.
290. See also
AIR 2003 Ker Devendrappa Corporation,
AlR 1998 SC
admission of students to unaided minority educational institutions could rot
71. v. K.S.S.1.D.
72. See also M.D. 1997 Ker 133.
AlR 355.
AIR 2003 SC
v. State of Kerala,
Foundation v. State of Karnataka,
of. the Supreme
Court, clearing 16. AIR 1992 SC 1630.
73. T.M.A. Pai Constitution
Bench
professional 77. AIR 1954 SC 13.
540. A
seven-Judge and minority
74. AIR 1963 SC a d 1 n i s s i o n s in unaided private its students 78. Requirement of C.E.T. has been. held as not violative of Article 30 or 19(2g): See
foist a quota of
own
about
the ambiguity no right to D.S. Educational Trust v. Government of A.P., (2007) NOC 624 (A.P.).
ruled that government.
had 13, 200.
institutions, Tribune, August 79. AIR 2003 SC 355.
institutions. Scc The
in such F26
AIR 1979
SC 83.
75.
 RIGHTS 405
DUCATIONAL
CULTURAL ANID
CONSTITUTION ( F INDIA
404
admission was o1 to set aside.
a s the found not desirable in law o r
o r University, so long
be Fegulated at all by a State merit w a s adequately taken c a r e of. However, keeping a rigid percentage w a s
should be reasonable, having
the that the non-minority component
a transparent basis and the Court ruled, would
be practice. Now, case,**
minority educational institution, stated abovc,** the St. Stephen's College
An aided
to the extent
students belonging minority regard to various factors
cntitled to right of admission of
have the
ol stands partly overruled.
to admit a reasonable instilulions are
group. However, they would be required substantially As regards the aided linguistic minority educational
so that "the rights
under Article 30(1) a r e of that group residing
LOn-minority students, under Article 29(1) a r e
not infringed. concerned, the Apex Court has ruled thal the studentslhave
naintained while the citizens rights to be necessarily
reasonable extent, the Court explained, would vary in the State in which the. institution is located,bodies of such institutions
What would be the a

types of institutions,
the c o u r s e s of education
for which admitted in a m e a s u r e . But, the management
large students of the
depending upon needs of the minorities
and
cannot to the dcvice of adniitting the linguistic
resort
sought, the educational which they a r e in a majority, under the
facade of the
ndmission w a s being concerned State Government to determine adjoining State in
similar factors. It would be for the
students to be adimitted in
such
protection given under Article 30(1).
In other words, the Court explained thut
this percentage of non-minority
notify the State in which the
of linguistic students hailing from
nd
institutions. predominance
institution was established, should be present.
Court held that thhe
In the of aided minority institutions, the Apex
case Foundation*" majority
Government the University could ask for due
or
consideration to be given to Clarifying the doubts read in tlhe 'T.M.A. Pai of
the weaker sections of the society in
the admission process. decision, a five Judge Bench of the Apex Court in Islamic Academy
institutions, it has been Cducation v. State ofa Karnatakas"CImmittees" lhas directed the respective State
Again, in the c a s e of aided minority professional the c o m m o n entrance to e n s u r e that the tests
ruled,that it c a n also be stipulated that passing
of Government to
appoint permanent
Lest held by the State agency is necessary to seek admission unless conducted for admission were fair and transparent. While the respective State
Guvernment was to allot different percentage of quota for students to be
specifically exempted otherwise.

Clarifying the rule laid down in T.M.A. Pai's cnse," the Apex Court admitted by
the management, in case of' nny dispute, it would be open to the
management to approach the Committeu. It was made clear that in fixin8
Islamic Education v. State of Karnataka,5
Acndemy of explaiined
in the minority and percentage for unaided minority professional colleges the State would keep
that a s regard the method of admission of the students,
would select students either o n in mind, apart from local needs, the paramount interest/need of that
non-minority unaided professional colleges, the basis of
the basSis of c o m m o n entrance tests
conducted by the State or on community, in the State.
association of all colleges of a
to
Common entrance tests State.
be conducted by an to
The right administeer eduoational institutions inoludes the
type in that Tho States w e r e directed to appoint permanent right to impart religious instructions in the institutions.
particular
Committee for supervising common entrance tests so conducted. In case an

institution has been permitted to adopt its

own admission procedure for
the
.
The
Calcutta High Court in Assoolation of Teachers of A. I.
Association of Aids of A.I. School,o held that it could not be disputed
Sohool
that institution from the
last, at least 25 years, the Committee may exemptinstitute are found to be that the right of religious minority
a to impart religious instructions in their
entrance test, if the needs of such
an
common educational institution formed part of the right to administer the
genuine.
institution.
But, this right is curtailed by Article 28(3) and that the right should be read
entrance
Some States have sought exemption from conducting
common
subject to implied limitations under Articles 29(2), 15(4) and 28(3). It would
basis of marks obtained by
test and liberty to regulate admission on the thus mean that the moment the
minority institution receive9
involved the modification
candidates in qualifying HsC. Since, such a prayer Government aid, Articles 28(3) and 29(2) would cone into
of the decision in the case of Islamic Academy
Education, the matter is
The right to administer educational institutions
play."
of their choice
directed to be placed for reference to larger Bench.» includes the right to have a choice of the medium
their instit ions of instruction.
So far the right of the minorities to admit students in
v. University
w a s governed by the law laid down in St. Stephen's College 84. In that
the Court found difficult the Court held that nminority aided institutions might reserve 50%
case,.
of Delhi,83 the principles of law so laid down, Apex seats for their
community students and nnke available at least 50% seats to other
conmunity students.
85. These might be the
tyjies of institutions, the courses
80. T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355. needs of the minorities and of education, the educnlional
sin1ilar factors,
36. St.
81. AlR 2003 SC 3724. Stephen's College v. University of Delhi, AIR 1992 SC 1630.
in unaided private and minority 87. T.M.A. Pai Foundation v. State
82. Clonring the nmbiguity nbout ad missions of Kurnatahu, AIR 2003 SC 355.
professional institutions, a seven-Judge Constitution Bench of the Supreme Court, 88. AlR 2003 SC 3724.
whilo asking them to follow the principle of triple testa-fairneas, tranapareney and 89.
The Committee
'

non-exploitation ot atudents, such

ns ked inatitutions to
adopt the procedure for
tho conaisting of fiv» members is Lo be heuded by
High Court to be a retired Judge
olding CET by forming a group umong themsolves. Sce The Tribune, 13-8-05.
90. AIR 1995 Cal 194. noininatecd by the Chiot Justice of that Slate. u
83. MR 1992 SC 1630. 91. T.M.A. Pai Foundation v. Stute of Kurnutnku, AIR 2003 SC 356.
 RiGiITS 07
CULTURAL. AND EDUCAT1ONAL

CONSTIrUTION (OF INDIA

overruled in the T.M.A. Pai Foundation v. State of Karnatalka' case.

(ourt has
Punjab,E Lhe Supreme
Court
regards the professtonal institutions, the Apex
unaided
Bhatinda v. State of As structure. They a r e allowed
In D.A.V. Collego, requiriing allowed the management to adopt a rational fee
Circulor issued by the Punjabi University, l'atiala, the only cayeat beinz that
struck down a affiliuted to Lhe Universily, to collect fees and charges they find appropriate,
compulsorily
to be charging capitation fee for profiteèring Realiüing
were Script
the Colleges which introduce Punjabi
in G u r u m u k h i not
all
institutions, to ruled that the they should appear
business and that cost of
the
including the minority The Court that educalion is incréasingly being run, as a
and e x a m i n a t i o n . educational the need Lo have
is escalating., the Apex Court has conceded
instruction
medium of to administer
it,
ns the
Article 30(1) to minorities
tnstruclion running meet the cost of expansion and augrhentation
by of
right guaranteed
to have the
choice of the medium
surplus income generated to could
institutions
included the right of facilities. The Court, however, required that appropriate machirery
to ensure that no capitation fee
and was
and examination. educationul
standards
be devised by the State or University
for maintaining held not charged and that there was no profiteering.
Statutory
measures
institutions have been
excellence in the
educational
30(1).** A five-Judge Bench of the Apex Court in Islamic Academy of
conferrod by Article Court said that the read in T.M.A.
violative of the right the Supreme Education v. State of Karnatalka," clarifying the doubts
Bill, 1957, Article 30(1) did not constitution of a
In re Korala Education
contained in Pai Foundation majority decision, has directed the
institutions
the retired Judge of the
right to administer
educational
State to insist
that in granting aid, separate Committee in each State, to be headed by a
e x c e l l e n c e in tho
the claim of the to approve the fee structure of the institutions conductin
militate against
r e a s o n a b l e regulations
to e n s u r e
to give High Court, mind the infrastructure and
State might
not prescribe conditions designed madical and engineering courses, kceping in
Court thus uplhold certain
teachers and
were rendering service facilities available, the investment made, salaries paid to the
institutions. The who
to ill paid teachers
thebaclkward stalt, future plans for expansion and/or betterment of the institution, etc. The
protection and socurity classes.o
be binding for period of three years, a t
administer engrafted under
protuct
and to foe fixed by the Committee shall a
to tho n a t i o n
well ruled that the rjght to, " Even the end of which period, the institute would be at liberty to apply for revision.
" t has been the right to malad1ninister
***
all the
confer'on a minority that right
c a n n o t be
Hcwever, collection of fees, in advance, for the cntire course, i.e., for
Article 30 would not
down any limitation, but
30 does not luy r é a s o n a b l e restrictions,
consistent years, has been held not permissible.
though Article be.subject to made to
Union of India,' reiterated that
absolute. It must
therefore, c a n
always be The Apex Court in Modern School v.
said to be Regulations, When any the unaided
national
interest.""
standard of institution. in the matter of determination of the fee structure,
with and for the
educational
character
would be obligatory
educational institutions, exercised a great autonomy as they, like any
maintain ruled that it s t a n d a r d of
regulatory
measure is assailed, it is in fact, secures a
to
other citizen carrying on an occupation, were entitled to a reasonable surplus
the provision,
the minority for development of education and
Court to find
out a s to whether
i n s t i t u t i o n and of
preserving the right of
transparency,
of
the institution.
oxpansionexpenditure
accountability,
However. to
management and
excellence of the
minority
institution.s
bring in
a d m i n i s t e r the
institution as a
of Fee utilization of savings for capital the
expenditurelinvestment,
Court
as also to prevent
directions in this respect.
Commercialization of education,
F e e / D e t e r m i n a t i o n

gave
Collect Capitation
No Right to
Relying on T.MA. Pai decision,5 the Kerala High Court held that it
scheme relating for
Structure Court framed a was npt permissible for the State Government to issue executive order
case,9 the Apex their anxiety to check
In Unni
Krishnan's

and tho fixing of

the fee. In
seats fixing fee to by solf-financing professional colleges and also
be charged
of admission "free" "payment" and proving cross subsidy.
to the grant
of oducation, a
scheme of first 50%
capacity of the
the commercialization
assumption that
the economic
50%. The
schdme Where, in compliance with the directions issued by the Supreme Court
evolved o n the
be grçater than the remaining
been in Islamic Academy of Education v. State of Karmataka he State
was would It h¡s, therefore,
a d m i t t e d students, issues.
of
had c r e a t e d
c e r t a i n problems
and raised thorny Government
that fee fixedappoints a Regulatory
by a private unaidedCommittee,
professionalthe Committee
college, hastransgress
does not to ensure
been ruled
1971 SC 1731. Singh, AIR
2001 SC 1891.
into profiteering and charging of capitation fee. It has, however,
92. AlR
CIM. St. John
Inter College v.
Girdhari
that the role of the Committee is not that of a primary determiner of
fees.
93.
SCC 386, general laws The determination of fees, the Court ruled, is a function of the management,
94. AlR 1958 SC 956 v. T. Jose, (2007) 1
héalth,
Catholic College order, morality,
in M.S. wellare, public
95. Likewise

to national
interes/sccurity,
socinl
equnlly applicablo
to minority
institutions.
I.2. AIR 2003 SC 356.
relating
sanitation, luxation,
etc. lhuve
Education
been held
Board v. M.C.
Madarasa Hanajia
Arabic College,
3.
See,
JT 2003
eR., Modern School
(7) SC 1.
v. Union of tndia, 2004(5) SCALE 170.
Madarasa
Bihur State Al Suints
96. 1974 SC 1389; 4. 2004 (5) SCALE 170.
AlR 1990 SC 695. Gujarat, AlR
State of T.M.A. Pai Foundation v. AlR 2003
97. St. Xavier's College Sucrly v,

SC 1042. Frank Anthauy

5. State of Karnataka, S355.
College v. Gout. of A.P,
1980
Girdhari Singh,
AlR 2001 SC
1891; 6. Kerala S.F.E.C.M. Assocn. v. State of Kerala, AIR 2005 NOC' 83 (Kerala).
lnter College
v.
1987 SC 311. 7. AIR 2003 SC 3724.
98. CIM. St. John Union of India, AlR
Assucialun v.
2178.
P.S. Employee's AlR 1993 SC
v Stule of A.P.,
Krislunan
99. Unni
 RIGIITS

CULTURAL.
ANID 1:DUCATUONAI.

CONSTITUTON OF INDIA n
ninimum security of
nt alfording orders in the
JO8 intorference. It w a s uimed ol mala lide
the charging of a capitation
statutory eschewing the passing power o n thc
Committee is to prevent Lo the teachers by guided and limited
and the function of the servico r o t r o n c h m e n t . Il thus conferrod u
in fact, become
r e t r e n c h m e n t had
lee and profiteering* garb of whether a
Constitution Bench of the Apex to find out with the right of
a seven-Judge compolont authority not i n t e r t o r e
Clearing the ambiguity, the fee in n a t u r , did
Committecs against "generalistng" It boing regulatory aN being
regulatory in character
necessary.
Court, cautioned the Regulatory look into 7 w a s also upheld Apex Court
them to go into the accounts of the colleges, the minority. Section Stato of
Karnataka," the
s t r u c t u r e and required out what would F o u n d a t i o n v.
for the purpose of finding In TM.A. Pai for granting recognition
a r o laid down
their schemes, plans and budgets the conditions
that
r c a s o n a b l e fee for that particular institution. impressed that
governmental/university
lead to
be "an ideal and has not be such a s may
nnd affiliation, should
institution.
educational
o r Affiliation administration of the private oppross or
No Right to Recognition control of the the right to
the Supreme Court
held that there was
administer does not include
In St. Xavier's Collego case,° Afmliation The right to
to affiliation to a University. staff.
1 0 fundamental right of a minority of the minority exploit the teaching A s s o c i a t i o n v. Union
educational character and
content School Employees'
is for regulating the c o u r s e of study,
the In Frank Anthony Publice to the
which regulate the n new dynamic interpretation
institution. Thercfore,
mensurcs
the Supreme Coùrt gave under
of teachers, the conditions of employment of of India," administer their institutions guaranteed
(qualNications and appointment for libraries and right of the minorities
to
School Education Act, 1973,
provided for
of students, facilitics Delhi
tenchers, the health and hygiene affiliation of minority Article 30(1). In this c a s e the Delhi. Sections 8
in matters germane to of school education in
laboratories, a r e all comprised and better organisation and development conditions of service of employees
measures a r e for uniformity, efficiency terms and
with the
institutions. These regulatory
c o u r s e s and a s such
do not violate the right of
the to 11 of the Act dealt that tho scales of pay
and
educational schools. Section 10 provided
excellence in of recognised private schools would be not
conferred by Article 30(1). etc. of the employees of recognised private
minority Andhra Pradesh," allowances, Schools. But Section 12
School v. G o v e r n m e n t of of the Government
In All Saints High Educational less than those of the employees schools".
Pradesh Recognised Private to "unaided minority
Suctioha 3* to*"7 of the Andhra Article 30(1). of the Act made these provisions inapplicable
1975 w e r e challenged ns violative of
Section 12 of the Act a s discrininatory and
Institutions Control Act, the competent The Supreme Court held Sections
for obtaining prior approval ol the provision of
Sections 3(1) & (2) provided i n s t i t u t i o n should be hence violative 14.
of Article The Court whilo holding
employed in any private
8 to 11 of the Delhi School Education
Act, 1973 as regulatory in character,
nuthority before a teacher,
in rank. Section 3(3(n) required that no
not violative of the right of the
minorities
dismissed, removed o r reduced when a n inquiry into the declared that these provisions wore
under susponsion except
teacher should be placed Section 3(3)Mb) provided enshrined in Article 30(1).
w a s contemplated. a minority institution
misconduct of such teacher
ross forcc for m o r e than a period
of
The Court furthor said that the managoment of
w a s to remain in of the right guarantend by Article
tliat no such suspension would be deomed to have
bcen
could not be permitted, under the guise
months or the teacher
concerned
Such oppression or exploitation of
two
a teacher to prefer
a n appeal to the prescribed 30(1), to oppress or exploit its enployees. to
reinstated. Section 4 entitled
mentioned above were
taken or
teaching staff, the Court declared, w a s bound to lead, inevitably
whom of tho actions the instruction imparted in the
authority against servico any altered. Section 5 empowered the competent discontent and deterioration of the standard of
his conditions of
were the institution a n
in certain past disciplinary
cases.
Section required
6 institution, affecting adversely the objoct of making
authority to hear appenl
authority in c a s e s any retrenchment
was
effective vehicle of education for the minority community or other persons
of the competent allowanees of a
the prior approval
for payment of pay and who resorted to it.
cffected. Section 7 made provision Union
authority or officer. Likewise, in Christian Medical College Hospital Employees'
twacherby the prescribed Court upheld Sections 3(3)
& (b) and 3(4), v. Christian Medical College," the Supreme Court held that Sections 9A,
The majority of the Supreme to the 10, 11A, 12 and 33 of the Industrial Disputes Act, 1947, were applicable to
down Sections 4 and 5 a s not applicable
6 &7 a s valid but struck Court said were the minority educational institutions. The Act, being a general law, for \
institutions. Sections 3(3%a)
& (b) and 3 (4), the
ninority not deny to the management
the right
prevention and settlement of industrial disputes, it was held, could not be
character since they did
egulatory in that right by said to interfere with the right of the minorities under Article 30(1).
teacher but only regulated
to proceed against
the erring an inquiry w a s
should not be suspended unless
directing that a teacher Section that it was, difficult to
356.
6, the Court held 12. AtR 2003 SC
contemplated. As regards retrenchment
a
of teachers w a s purely donmestic affair 13. AIR 1987 SC 311. Frunk Anthony cure, wns followed in Y. 7hechlamuna v, Union
share thc view that was beyond the f India, AIR 1987 SC 110, wheroin n' provlsion requiring prior approval of Director
the decision of the management
minority institution and Maharashtra,. AlR 2005 Bom. 18. of Education before Locher wne suspendod, wa upheld as not violative of Article
Centre v. State of
8. N.K.P. Salve 1.M.S.R. 13, 2005.
301). See also K. Krishnamuehuryulu v. Srl Venhateswaru Hindu Cullope of
Educutiun, AlR 1998 SC 295
See The Tribune, August SC 1389. See also St
. AIR 1974
Xavier's Cullege Sciely v. State of Gujarat, 1994 SC 43. 14. AIR 1988 SC s7. Alsu see M.S. Cathute Culteg v. T. Jx, 2007 1 SCC 386:
I0. St. Tamil Nadu, AlR
lnstitute v. State of P.A. Tnamdar v. State of Maharashtrn, (2006) 6 SCC
John's Training
Teachers
537.
I. AIR 1980 SC 1042.
410
CONSTITUTION OF INDIA
CULTURAI. AND ED,CATIONAi, RICHTS
The
observations made by the Court in Christian
Hospital Employees' Case, were relied upon Medical College, (1) The fundamental right declared by Article 301) of the Cosstitutior
All Bihar Christian
School Association v. State of Bihar." Inin this the
is absolute in terms, but subjectto regulatory measures
Non-Government Secondary Schools
(Taking over of Management Bihar
case
(2) There is no fundamental rnght under Article 19(1( of the
Control) Act, 1982, provided for the and Constitution to establish or administer an educational institution,
taking over the management and control
by the Government of all the non-Government if recognition is sought therefor
Secondary Schools,
organisation and development of Secondary Education in the State. for better
(3) The institutions must be educational institutions of the minorities
it exempted the
minority schools which could be taken over only However, in truth and reality and not mere masked phantoms,
concerned managing committees voluntarily made an unconditionalwhen
the
offer to (4) There is no fundamental right to recognition and any institution
hand over the school. Section 18 of the Act laid down terms and conditions seeking recognition should abide by the regulations prescribed by
for granting recognition to the State as conditions therefor;
a minority school. It required
minority every
secondary school to have a Managing Committee and written by-laws. The (5) The minority institutions must be fully equipped with educational
Managing Committee was required to appoint teachers with the concurrence excellence to keep in step with other institutions in the Stte,
of the School Service Board. The
Committeelwas to prescribe rules regarding
the service conditions of teachers based on natural
(6) The regulations framed by the State cannot abridge the
justice and prevailing law. fundamental right of the minorities and they should be in the
The Committee was vested with power to remove,
dismiss, terminate or interest of the minority institutions themselves and not based on
discharge a teacher from service with the approval of School Service Board. State necessity or general society necessities;
It would charge such fees from the students as were
prescribed by the State (7) The regulations should be with a view to promoting excellence of
Government, for charging any higher fees prior approval of the Government
was required. educational standards and ensuring security of service of teachers
The Supreme Court held that the provisions of Section 18 of the Act and other employees of the institutions and in the true interests
of efficiency of institutions, discipline, health, sanitation,
Were regulatory in nature, which sought to secure excellence in education and nmorality,
public order and the like;
effictency tn management of sclools. It was held that the provisions of the
Act did not in any manner encroach upon the fundamental right of a minority
(8) Even unaided institutions are not immuned from the operation of
general laws of the land such as Contract Law, Tax measures,
institution.
Economic Laws, Social Welfare Legislations, Labour and Industrial
Again, in St. John's Teachers Training Institute v. State of Tamil Laws and similer other laws which are intended to meet the need
Nadu," the Supreme Court emphasised on the excellence of educational of the Society.
standard along with ensuring security of service to the teachers and other
employees,while dealing with the guarantee contained in Article 30(1). In a matter relating to governmental
that the Court should decline to interfere.
policy, it has been held

In this case, the appellant claimed to be a minority educational

institution, was refused recognition by the State Government on the ground In English Medium Students Parents Associationv. State of
Karnataka," the Government of Karnataka with a view to the promotion
contained in the Tamil
of non-compliance of the conditions for recognition
of the cause of "Kannada" language in the State, issued order for the
an
Nadu Minority Schools (Recognition and Payment of Grants) Rules, 1977, as teaching ofissued
"Kannada" from I11 Standard in the Non-Kannada Schools. The
amended by the Order of 1991. In addition to minimum qualifications for
of land Order was after
consideration of the report of Committee constituted
a
teachingand non-teaching staff, the Rules provided the extent
for
bath
for making recommendations as to introduce "Kannada as a compulsory
of classrooms, cost
sizes with 10,000 books, number of
of library rooms, subject for all children from 3rd Standard. The Supreme Court held that
adequate furniture, laboratory equipments, teaching appliances, sports,
and material for work compulsion of study of policy
State regional language was matter
a
relating to the
and equipment and in the matters of
games, arts and music equipments Government language policy,
the Court should
experience. The Madras High Court upheld the action taken by the decline to interfere. 1
Government in refusing to recognise the appellant institution. The High
Court made an analysis of the earlier pronouncements of the Courts
in regard
out the following principles
Acquisition of property
[Article 30 (1-A)]
of Minority Educational Institution
to the right guaranteed by Article 30(1) and culled
for determining the scope and an1bit of,the rig The principles so enunciated
Prior to the Constitution (Forty-fourth Amendment) Act, 1978,
the Supreme Court in appeal. These omitted Article 31l which
by the High Court were approved by guaranteed the fundamental right to property and
are as follows it also provided for compulsory acquisition of property by the State for public
purpose. With a view to safeguard the right to property belonging to
15. Tbid educational institution established and administered by any minority,. an
16. AlR 1988 SC 305.
the
Forty-fourth Amendment inserted Clause (1-A) after Clause (1) of Article
Hussain v. State of Bihar, AlR 1995 Pat
17. AlR 1994 SC 43. See also Syed Weluyat AlR 1984 SC 1757.
17; Managing Board of Milli
Talimi Mission v. State of Bihar. 16. AIR 994 SC 1702.
 RIGHTS
413
EDUCATIONAL
CULTURAL
AND

institution shall not

CONSTITUTION ()F INDIA
A12
Article 30(2) only means that
a minority
institutions is granted.
is made providing for 30(1) illusory. aid to
educational

against when conditions while

30. The new [1-A) provides that "where a law
Clause be discriminated
held that the
State may impose
an educational instltuaon have to be uniformly
the compulsory acquisition of any property of
been
Further, it has i n s t i t u t i o n . But,
the c o n d i t i o n s
the amount fixed by or r u n institution
it shall be ensured that a minority i n s t i t u t i o n or a minority
belonging to a minority, the
would not restrict or abrogate right giving aid to run
of the
such whether it is a majority the proper utilisation
deterimned under such law is
as
applied, to
Article 30." must have relevance that it recognises
guarateed under Clause (1) of Also that the conditions
Article 30(2),
the Court said, "is
for the first time, the The implication of continue, notwithstanding,
'The Apex Court was called upon to interpret, aid.2 the institution should
30 in Society of St. Joseph's Collegev. minority nature of is an additional right
provision of Clause (1A) of Article Clause
that the
said that Article 30(2)
Union of India." A Constitution
Bench of five Judges ruled that the grant of aid." It
has been
But, it would depend on the
its introduction, there must Article 30(1)." State
minorities under discretion of the
(1A) of Article 30 stated that after the date of conferred on wcll as,
to the compulsory acquisition of
the property
stability and resources, as s a t i s f a c t i o n . It is held to be a n
be a law that specifically related énsured financial
that law must make provisions that exercised upon subjective
Further,
institutions. Government,
of minority was such as did not
restrict or
that the amount fixed for the acquisition a Statute
economic concept.s
under Article 30. The provisions of
abrogate the right guaranteed 26(a)-Compared
in general, as Land Acquisition Article 30(1) and
Article
26(a)*" s e c u r e the right
to
that provided for acquisition of property of minority Articles 30(1) and
for the compulsory acquisition It may be noted that both However, they
Act, 1894, were not adequate To this extent, they overlap.
educational institutions.
institutrons property, the Court held. cstablish
Institution differ in the following respects the right to establish
in granting aid to educational Firstly, while
Article 26(a) secures

N6 Discrimination as wellminority communities,

as
Article
MArticle 30(2)] aid institutions to the majority religious as well as linguistic.
Clause (2) of Article 30 provides: "The State shall not, in granting right to the minoritics,
any educational institution 30(1) s e c u r e s that refers only to religious
denominations,
to educational institutions, discriminate against Secondly, while Article 26(a)
the ground that it is under the management
of a minority, whether based
contains the right of religious as well as linguistic
on
Article 30(1).
on religion or language" minorities.
the right secured by Clause as (1) of the right of a religious
he object of Clause (2) is to make Thirdly,while Ariicle 26(a) says
held to be a constitutional them, Article
a real right." But,
the grant of aid has not been denomination to maintain
the institution established by
institution.
to minority to administer their
imperative. 30(1). secures the right a
Article 26a) is subjectecd to
Fourthly, while the right Article by
secured
and State-Aid 30(1) does not specifically
state
Minority Institútions Nadu v. Melapalayam
Muslim Magalir Kalvi and health,
public order, morality Article 30(1) is subjected to any such conditions.
State of Tamil
In Court held that the minorities
could not be that the right under
is not so
Sangam22 the Madras High that the right under Article 30(1)
without State aid. The Court It has, however, been held Article
asked to maintain their
educational institutions cannot be disputed that
Court in Roman Catholic Socicety absolute as to be above the law. It, thus,
relied upon the decision of the Supreme laws and the laws made in the national
Court held that the 30(1) is subject to the general
v. The Government
of Tamil Nadu,2" wherein the
institutions were not business houses. They did not generate interest.
educational funds or private
not survive without public
wealth and therefore they could valid ground to
of finance, the Court said, could not be a
aid. The paucity
minority
The same
educational institutions. was held in view
denying aid to
1957.24
In Re Kerala Education Bill,
T.M.A. Pai Foundation State of Karnataka,5 the
v.
However, in
ruled that the grant of
aid is not a constitutional
Court has
Supreme
absence of aid does not make
the right under Article
imperative and that the
19. AIR 2002 SC 196.
State
v. of Gujarat, AIR
1963 SC 640.
20. Sidhrajbhai 066.
Karnataka, AIR 2003 SC
21. T.M.A.Pal Foundation v, State of Delhi, AIR 1992
St. Stephen's College v, Unluerality of 26. M.S. Catholic College v. T. Jose, (2007) 1 SCC 386.
22. AIR 1998 Mad 91. See also 2425,
Asad Raza, AIR 1997 SC 27. 1bid. Per Justice Mrs. Ruma Pal, /bid, 470.
SC 1630; State of Bihar v. Syed
23. 1991 Writ LR 130 28. Maria Grace Rural Middle S¢hool v. Government of T'N., AIR 2007 Mad. 52.
1996 SC
Maharashtra v. Manubhai Prugaji Vashi, AIR 29. Soe supra, 380-81.
24. AIR 1968 SC 956; State of
1. 30. See T.M.A. Pai Foundation v. State of Karnataka, AlR 2003 SC 355.

26 AlR 2003 SC 355.