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IN THE SUPREME COURT OF
INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL APPEAL NO. 5041 OF
2005
(Arising
out of Special Leave Petition (C) No.9932 of 2004)
P.A.
Inamdar & Ors.
... Appellants
Versus
State
of Maharashtra & Ors.
... Respondents
WITH
Civil
Appeal No. 5042 of 2005 (@ SLP(C) No.9935/2004); Civil
Appeal No. 5043 of 2005 (@ SLP(C) No. 9936/2004); W.P.
(C) No. 276/2004; W.P. (C) No. 330/2004; W.P. (C) No. 357/2004;
I.A. NOS. 26, 27, 30, 31 AND 33 IN W.P. (C) No.350/1993; Civil
Appeal No. 5035 of 2005 (@ SLP(C) No.11244/2004; W.P.(C)
No. 302/204; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004;
W.P. (C) No. 350/2004; W.P. (C) No. 387/2004; W.P. (C) No.
423/2004; W.P. (C) No. 480/2004; W.P. (C) No. 19/2005; W.P.
(C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No. 380/2004;
W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P. (C) No.
360/2004; W.P. (C) No.361/2004; W.P. (C) No. 362/2004; W.P.
(C) No. 363/2004; C.A. No. 5257-5258/2004; C.A. No. 5259/2004;
C.A. No. 5260-5261/2004; C.A. No. 5262-5263/2004; C.A. No.
5996/2004; C.A. No. 5992/2004; C.A. No. 5997-5998/2004; C.A.
No. 7969-7971/2004; C.A. No. 7972/2004; C.A. No. 7973/2004;
C.A. No. 7974/2004; C.A. No. 7975/2004; W.P. (C) No. 371/2004;
W.P. (C) No. 368/2004; C.A. No. 7117-7119/2004; C.A. No. 7124-7126/2004;
CONMT.PET. (CIVIL) No. 561-563/2004 In C.A. No. 7117-7119/2004;
CONMT. PET. (CIVIL) No. 564-566/2004 in C.A. No. 7124-7126/2004;
W.P. (C) No. 251/2004; Civil Appeal No. 5036 of 2005
(@ SLP (C) No. 17464/2004); Civil Appeal No. 5037 of
2005 (@ SLP (C) No. 17549/2004); W.P. (C)
No. 318/2004; Civil Appeal No. 5038
of 2005 (@ SLP(C) No. 17930/2004; Civil Appeal No. 5039
of 2005 (@ SLP (C) No. 17931/2004); Civil Appeal No. 5040
of 2005 (@ SLP (C) No. 17326/2003); W.P. (C) No. 386/2004;
W.P. (C) No. 397/2004
J U D G M E N T
R.C. Lahoti, CJI
Preliminary
Leave
granted in all SLPs.
A
Coram of 11 judges, not a common feature in the Supreme Court
of India, sat to hear and decide T.M.A.Pai
Foundation v. State of
Karnataka
(2002) 8 SCC 481 (hereinafter
'Pai Foundation', for short).
It was expected that the authoritative pronouncement by a
Bench of such strength on the issues arising before it would
draw a final curtain on those controversies. The subsequent
events tell a different story. A learned academician
observes that the 11-Judge Bench
decision in Pai
Foundation is a
partial response to some
of the challenges posed by the impact of Liberalisation, Privatisation
and Globalisation (LPG), but the question whether that is
a satisfactory response, is indeed
debatable. It was
further pointed out that 'the decision raises more questions
than it has answered' (see : Annual Survey of Indian Law,
2002 at p.251, 254). The Survey goes on to observe
"the principles laid down by the majority in Pai Foundation are
so broadly formulated that they provide sufficient
leeway to subsequent courts in applying those
principles while the lack of clarity in the judgment allows
judicial creativity..." (ibid at p.256).
The
prophecy has come true and while the ink on the opinions in
Pai Foundation was
yet to dry, the High Courts were flooded with
writ petitions, calling for settlements
of several issues which were not yet resolved or which propped
on floor, post Pai Foundation.
A number of Special
Leave Petitions against interim orders passed by High Courts
and a few writ petitions came
to be filed directly
in this Court. A Constitution
Bench sat to interpret the 11-Judge Bench decision in
Pai Foundation
which it did vide its judgment dated 14.8.2003
(reported as - Islamic Academy
of Education & Anr. v. State
of Karnataka & Ors.,
(2003) 6 SCC 697; "Islamic
Academy" for short).
The 11 learned
Judges constituting the Bench
in Pai Foundation
delivered five opinions. The
majority opinion on behalf
of 6 Judges was delivered
by B.N. Kirpal, CJ. Khare, J (as His Lordship
then was) delivered a separate but concurring
opinion, supporting the majority. Quadri, J, Ruma
Pal, J and Variava, J (for himself and Bhan, J) delivered
three separate opinions partly dissenting from the majority.
Islamic Academy too
handed over two opinions. The majority opinion for 4 learned
Judges has been delivered by V.N. Khare, CJ. S.B. Sinha,
J, has delivered a separate opinion.
The events following Islamic Academy judgment
show that some of the main questions have remained unsettled
even after the exercise undertaken by the Constitution Bench
in Islamic Academy in
clarification of the 11-Judge Bench decision
in Pai Foundation. A
few of those unsettled questions as also some aspects of clarification
are before us calling for settlement by this Bench of 7 Judges
which we hopefully propose to do.
Pai Foundation and
Islamic Academy have
set out the factual backdrop of the issues leading to the
formulation of 11-Judge and 5-Judge Benches respectively.
For details thereof a reference may be made to the reported
decisions. A brief summary of the past events, highlighting
the issues as they have travelled in search of resolution
would be apposite.
II
BACKDROP
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(l)(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.
Education
has since long been a matter of litigation. Law reports are
replete with rulings touching and centering around education
in its several aspects. Until Pai Foundation, there
were four oft quoted leading cases holding the field of education.
They were Unni Krishnan v. State of Andhra Pradesh
(1993) 1 SCC 645, St. Stephen's College
v. University of Delhi
(1992) 1 SCC 558, Ahmedabad St. Xavier's
College Society v. State of Gujarat
(1974) 1 SCC 717 and In Re: Kerala Education
Bill, 1957, (1958) SCR 995. For convenience
sake, these cases will be referred
to as Unni Krishnan, St. Stephen's,
St. Xavier's and Kerala Education Bill
respectively. All these cases amongst others
came up for the consideration of this Court in Pai
Foundation.
Correctness of the decision in St. Stephen's was doubted during
the course of hearing of Writ Petition No. 350 of 1993 filed
by Islamic Academy.
As St. Stephen's
is a pronouncement of 5-Judge
Bench, the matter was directed to be placed before 7-Judge Bench.
An
event of constitutional significance which had already happened,
was taken note of by the Constitution Bench. "Education" was
a State Subject in view of the following Entry 11 placed in
List II ─ State List: -
"11. Education including
universities, subject to the provisions of entries 63, 64,
65 and 66 of List I and entry 25 of List III."
By
the Constitution (42nd Amendment) Act 1976, the above said
Entry was directed to be deleted and instead Entry 25 in List
III - Concurrent List, was directed to be suitably amended
so as to read as under: -
"25. Education, including technical
education, medical education and universities, subject to
the provisions of entries 63, 64, 65 and 66 of List I; vocational
and technical training of labour."
The
7-Judge Bench felt
that the matter called for hearing by a 11-Judge Bench. The
11-Judge Bench
felt that it was not bound by the ratio propounded in Kerala Education Bill
and St. Xavier's and
was free to hear the case in wider perspective so as to discern
the true scope and interpretation of Article 30(1) of the
Constitution and make an authoritative pronouncement.
Eleven
Questions and Five
Heads of Issues in
Pai Foundation
In Pai Foundation, 11
questions were framed for being answered. Detailed submissions
were made centering around the 11 questions. The Court dealt
with the questions by classifying the discussion under the
following five heads:
1.
Is there a fundamental
right to set up
educational institutions and if so, under which provision?
2.
Does Unni Krishnan require
reconsideration?
3.
In case of private institutions, can there be government regulations
and, if so, to what extent?
4.
In order to determine the existence of a religious
or linguistic minority in relation to Article 30, what is
to be the unit - the State or the country as a whole?
5.
To what extent can the rights of aided private minority institutions
to administer be regulated?
Having
dealt with each of the above said heads, the Court through
the majority opinion expressed by B.N. Kirpal, CJ, recorded
answers to the 11 questions as they were framed and posed
for resolution. The questions and the answers as given by
the majority are set out hereunder:
"Q.1. What
is the meaning and content of the expression "minorities"
in Article 30 of the Constitution of India?
A.
Linguistic and religious minorities are covered by the
expression "minority" under Article 30 of the Constitution.
Since reorganization of the States in India has been on linguistic
lines, therefore, for the purpose of determining the minority,
the unit will be the State and not the whole of India. Thus, religious
and linguistic minorities, who have been put on a par in Article
30, have to be considered Statewise.
Q.2.
What is meant by the expression "religion" in Article
30(1)? Can the followers of a sect or denomination of
a particular religion claim protection under Article 30(1)
on the basis that they constitute a minority in the State,
even though the followers of that religion are in majority
in that State?
A.
This question need not be answered by this Bench;
it will be dealt with by a regular Bench.
Q.3 (a) What are the indicia for treating
an educational institution as a minority educational institution?
Would an institution be regarded as a minority educational
institution because it was established by a person(s) belonging
to a religious or linguistic minority or its being administered
by a person(s) belonging to a religious or linguistic minority?
A.
This question need not be answered by this Bench; it will
be dealt with by a regular Bench.
Q.3 (b) To what
extent can professional education be treated as a matter coming
under minorities' rights under Article 30?
A. Article 30(1) gives
religious and linguistic minorities the right to establish
and administer educational institutions of their choice. The
use of the words "of their choice" indicates that even professional
educational institutions would be covered by Article 30.
Q.4. Whether the admission
of students to minority educational institution, whether aided
or unaided, can be regulated by the State Government or by
the university to which the institution is affiliated?
A. Admission of students
to unaided minority educational institutions viz. schools
and undergraduate colleges where the scope for merit-based
selection is practically nil, cannot be regulated by the State
or university concerned, except for providing the qualifications
and minimum conditions of eligibility in the interest of academic
standards.
[emphasis by us]
The
right to admit students being an essential facet of the right
to administer educational institutions of their choice, as
contemplated under 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.
[emphasis by us]
A
minority institution does not cease to be so, the moment grant-in-aid
is received by the institution. An aided minority educational
institution, therefore, would be entitled to have the right
of admission of students belonging to the minority group and
at the same time, would be required to admit a reasonable
extent of non-minority students, so that the rights under
Article 30(1) are not substantially impaired and further the
citizens' rights under Article 29(2) are not infringed. What
would be a reasonable extent, would vary from the types of
institution, the courses of education for which admission
is being sought and other factors like educational needs.
The State Government concerned has to notify the percentage
of the non-minority students to be admitted in the light of
the above observations. Observance of inter se merit amongst
the applicants belonging to the minority group could be ensured.
In the case of aided professional institutions, it can also
be stipulated that passing of the common entrance test held
by the State agency is necessary to seek admission.
As regards non-minority students who are eligible to seek
admission for the remaining seats, admission should normally
be on the basis of the common entrance test held by the State
agency followed by counselling wherever it exists.
Q.5(a) Whether the minorities'
rights to establish and administer educational institutions
of their choice will include the procedure and method of admission
and selection of students?
A. A minority institution
may have its own procedure and method of admission as well
as selection of students, but such a procedure must be fair
and transparent, and the selection of students in professional
and higher education colleges should be on the basis of merit.
The procedure adopted or selection made should not be tantamount
to mal-administration. Even an unaided minority institution
ought not to ignore the merit of the students for
admission, while exercising its right to admit
students to the colleges aforesaid, as in that event, the
institution will fail to achieve excellence.
Q.5(b) Whether the minority
institutions' right of admission of students and to lay down
procedure and method of admission, if any, would be affected
in any way by the receipt of State aid?
A. While giving aid to
professional institutions, it would be permissible for the
authority giving aid to prescribe bye - rules or regulations, the
conditions on the basis of which admission will be granted to different
aided colleges by virtue of merit, coupled with the reservation
policy of the State qua non-minority students.
The merit may be determined either through a common entrance
test conducted by the university or the Government concerned
followed by counselling, or on the basis of an entrance test
conducted by the individual institutions - the method to be
followed is for the university or the Government to decide.
The authority may also devise other means to ensure that admission
is granted to an aided professional institution on the basis
of merit. In the case of such institutions, it will be permissible
for the Government or the university to provide that consideration
should be shown to the weaker sections of the society.
Q.5(c) Whether the statutory
provisions which regulate the facets of administration like
control over educational agencies, control over governing
bodies, conditions of affiliation including recognition/withdrawal
thereof, and appointment of staff, employees, teachers and
principals including their service conditions and regulation
of fees, etc. would interfere with the right of administration
of minorities?
A. So far as the statutory
provisions regulating the facets of administration are concerned,
in case of an unaided minority educational institution, the
regulatory measure of control should be minimal and the conditions
of recognition as well as the conditions of affiliation to
a university or board have to be complied with, but in the
matter of day-to-day management, like the appointment of staff,
teaching and non-teaching, and administrative control over
them, the management should have the freedom and there should
not be any external controlling agency. However, a rational
procedure for the selection of teaching staff and for taking
disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided
institutions who are subjected to punishment or termination
from service, a mechanism will have to be evolved, and in
our opinion, appropriate tribunals could be constituted, and
till then, such tribunals could be presided over by a judicial
officer of the rank of District Judge.
The State or other controlling authorities, however, can always
prescribe the minimum qualification, experience and other
conditions bearing on the merit of an individual for being
appointed as a teacher or a principal of any educational institution.
Regulations
can be framed governing service conditions for teaching and
other staff for whom aid is provided by the State, without
interfering with the overall administrative control of the
management over the staff.
Fees
to be charged by unaided institutions cannot be regulated
but no institution should charge capitation fee.
Q.6(a)
Where can a minority institution be operationally located?
Where a religious or linguistic minority in State A establishes
an educational institution in the said State, can such educational
institution grant preferential admission/reservations and
other benefits to members of the religious/linguistic group
from other States where they are non-minorities?
A. This question need
not be answered by this Bench; it will be dealt with by a
regular Bench.
Q. 6. (b)
Whether it would be correct to say that only the members
of that minority residing in State A will be treated as the
members of the minority vis-Ă -vis such institution?
A. This question need
not be answered by this Bench; it will be dealt with by a
regular Bench.
Q.7. Whether the member
of a linguistic non-minority in one State can establish a
trust/society in another State and claim minority status in
that State?
A. This question need
not be answered by this Bench; it will be dealt with by a
regular Bench.
Q.8. Whether the ratio laid
down by this Court in St. Stephen's case (St.
Stephen's College v. University of Delhi,
(1992) 1 SCC 558) is correct? If no, what order?
A. The basic ratio laid
down by this Court in St. Stephen's College case (supra)
is correct, as indicated in this judgment. However, rigid
percentage cannot be stipulated. It has to be left to
authorities to prescribe a reasonable percentage having regard
to the type of institution, population and educational needs
of minorities.
Q.
9. Whether the decision of this Court in Unni Krishnan, J.P.
v. State of A.P.,
(1993) 1 SCC 645 (except where it holds that primary
education is a fundamental right) and the scheme framed thereunder
require reconsideration/modification and if yes, what?
A. The
scheme framed by this Court in Unni Krishnan case
(supra) and the direction to impose the same, except
where it holds that primary education is a fundamental right,
is unconstitutional. However, the principle that there should
not be capitation fee or "profiteering is correct. Reasonable
surplus to meet cost of expansion and augmentation of facilities
does not, however, amount to profiteering.
Q.10.
Whether the non-minorities have the right to establish and
administer educational institution under Articles 21 and 29(1)
read with Articles 14 and 15(1), in the same manner and to
the same extent as minority institutions?
and
Q. 11. What is the meaning
of the expressions "education" and "educational institutions"
in various provisions of the Constitution? Is the right to
establish and administer educational institutions guaranteed
under the Constitution?
A. The expression "education"
in the articles of the Constitution means and includes education
at all levels from the primary school
level up to the postgraduate level. It
includes professional education. The expression "educational
institutions" means institutions that impart education, where
"education" is as understood hereinabove.
The right to establish and administer educational institutions
is guaranteed under the Constitution to all citizens under
Articles 19(l)(g) and 26, and to minorities specifically under
Article 30.
All citizens have a right to establish and administer educational
institutions under Articles 19(l)(g) and 26, but this right
is subject to the provisions of Articles 19(6) and 26(a).
However, minority institutions will have a right to admit
students belonging to the minority group, in the manner as
discussed in this judgment."
The majority led by Kirpal, CJ, in Pai Foundation did
say that the expression "minorities" in Article 30 of the
Constitution of India, whether linguistic or religious, has
to be determined by treating the State and not the whole of
India as unit. Questions
such as: (i) what is religion, (ii) what is the indicia for
determining if an educational institution is a minority institution,
(iii) whether a minority institution can operate extra-territorially
extending its activities into such states where the minority
establishing and administering the institution does not enjoy
minority status, (iv) the content and contour of minority
by reference to territories, were not answered in Pai Foundation and
were left to be determined by the regular Benches in individual
cases to be heard after the decision in Pai Foundation. We
also do not propose to involve ourselves by dealing with these
questions except to the extent it may become necessary to
do so for the purpose of answering the questions posed before
us.
Pai Foundation explained
in Islamic Academy
Pai Foundation Judgment
was delivered on 31.10.2002. The Union of India, various State
Governments and the Educational Institutions, each understood
the majority judgment in its own way. The State Governments
embarked upon enacting laws and framing the regulations, governing
the educational institutions in consonance with their own
understanding of Pai Foundation. This
led to litigation in several Courts. Interim orders passed
therein by High Courts came to be challenged before this Court.
At the hearing, again the parties through their learned counsel
tried to interpret the majority decision in Pai Foundation in
different ways as it suited them. The parties agreed that
there were certain anomalies and doubts, calling for clarification.
The persons seeking such clarifications were unaided professional
educational institutions, both minority and non-minority.
The Court formulated four questions as arising for consideration
in view of the rival submissions made before the Court in
Islamic Academy:
"(1)
whether the educational institutions are entitled to fix their
own fee structure;
(2)
whether minority and non-minority educational institutions
stand on the same footing and have the same rights;
(3)
whether private unaided professional colleges are entitled
to fill in their seats, to the extent of 100%, and if not,
to what extent; and
(4)
whether private unaided professional colleges are entitled
to admit students by evolving their own method
of admission."
We could attempt at formulating the gist of the answers given
by the Constitution Bench of the Court as under:
(1)
Each minority institution is entitled to have its own fee
structure subject to the condition that there can be no profiteering
and capitation fees cannot be charged. A provision for
reasonable surplus can be made to enable future expansion.
The relevant factors which would go into determining the reasonability
of a fee structure, in the opinion of majority, are:
(i)
the infrastructure and facilities available, (ii) the investments
made, (iii) salaries paid to the teachers and staff, (iv)
future plans for expansion and betterment of the institution
etc.
S.B. Sinha, J, defined what is 'capitation' and 'profiteering'
and also said that reasonable surplus should ordinarily vary
from 6 per cent to 15 per cent for utilization in expansion
of the system and development of education.
(2)
In the opinion of the majority, minority institutions stand
on a better footing than non-minority institutions.
Minority educational institutions have a guarantee or assurance
to establish and administer educational institutions of their
choice. State Legislation, primary
or delegated, cannot favour non- minority
institution over minority institution.
The difference arises because of Article 30, the protection
whereunder is available to minority educational institutions
only. The majority opinion called it a "special
right" given under Article 30.
In the opinion of S.B. Sinha, J, minority educational institutions
do not have a higher right in terms of Article 30(1); the
rights of minorities and non-minorities are equal. What is
conferred by Article 30(1) of the Constitution is "certain
additional protection" with the object of bringing the minorities
on the same platform as that of non-minorities, so that the
minorities are protected by establishing and administering
educational institutions for the benefit of their own community,
whether based on religion or language.
It is clear that as between minority and non-minority educational
institutions, the distinction made by Article 30(1) in the
fundamental rights conferred by Article 19(l)(g) has been
termed by the majority as "special right" while in the opinion
of S.B.Sinha, J, it is not a right but an "additional protection".
What difference it makes, we shall see a little later.
(3)&(4).
Questions 3 and 4 have been taken up for consideration together.
A reading of the opinion recorded in Islamic Academy shows
that paras 58, 59 and 68 of Pai Foundation were
considered and sought to be explained. It was not very
clear as to what types of institutions were being dealt with
in the above referred to paragraphs by the majority in Pai Foundation. Certainly,
distinction was being sought to be drawn between professional
colleges and other educational institutions (both minority
and unaided). Reference is also found to have been made
to minority and non-minority institutions. At some places,
observations have been made regarding institutions divided
into groups only by reference to aid, that is whether they
are aided or unaided educational institutions without regard
to the fact whether they were minority or non-
minority
institutions. It appears that there are a few passages/sentences
wherein it is not clear which type of institutions the majority
opinion in Pai Foundation was
referring to thereat. However, the majority opinion in Islamic Academy has
by explaining Pai Foundation held
as under:
(1)
In professional institutions, as they are unaided, there will
be full autonomy in their administration, but the principle
of merit cannot be sacrificed, as excellence in profession
is in national interest.
(2)
Without interfering with the autonomy of unaided institutions,
the object of merit based admissions can be secured by insisting
on it as a condition to the grant of recognition and subject
to the recognition of merit, the management can be given certain
discretion in admitting students.
(3)
The management can have quota for admitting students at its
discretion but subject to satisfying the test of merit based
admissions, which can be achieved by allowing management to
pick up students of their own choice from out of those who
have passed the common entrance test conducted by a centralized
mechanism. Such common entrance test can
be conducted by the State or by an association of
similarly placed institutions in the State.
(4)
The State can provide for reservation in favour of financially
or socially backward sections of the society.
(5)
The prescription for percentage of seats, that is allotment
of different quotas such as management seats, State's quota,
appropriated by the State for allotment to reserved categories
etc., has to be done by the State in accordance with the "local
needs" and the interests/needs of that minority
community in the
State, both deserving paramount
consideration. The exact
concept of "local needs" is | 
