Article 30: To Establish and to Administer

3. "And administer." To effectively manage and conduct the affairs of the institution. The conjunction matters: a body that did not establish an institution cannot claim article 30 protection for running it. In the Aligarh Muslim University litigation the Court held the University was brought into being by an Act of the central legislature in 1920 and not by the Muslim minority, so the minority had no article 30 right to administer it. That report has not been read here, so the case is named without a citation.

4. "Educational institutions of their choice." The Court has called "choice" the key to the article. It is not confined to teaching religion or the group's language; it covers "institutions imparting general secular education also"; and the eleven-judge Bench added that "even professional educational institutions would be covered by Article 30".

5. Clause (1A), the acquisition guarantee. Compensation fixed for compulsorily acquiring a minority institution's property must not be such as to restrict or abrogate the article 30(1) right. It was needed because the same Forty-fourth Amendment removed the right to property from article 19(1)(f): without clause (1A), a State could hollow out a minority institution by taking its buildings for a nominal sum. Note the contrast the eleven-judge Bench drew: clause (1A) says expressly that acquisition must not restrict or abrogate the clause (1) right, while clause (2) says nothing of the kind about aid, and the framers "advisedly" did not say it.

6. Clause (2), the aid guarantee. A prohibition on the State, not a right to aid. There is no fundamental right to a grant; what clause (2) forbids is refusing or reducing one because the management is a minority's.

What "establish" requires proof of

Minority status opens the door; establishment gets the claimant through it. The propositions the reports set out are these.

The claimant must prove it. That the founder belonged to a religious community is not conclusive; satisfactory evidence is required that the institution was established by a minority.

There must be a real positive index. As recorded in St. Stephen's, a court may "pierce the 'minority veil' and discover whether there is lurking behind it no minority at all"; minority institutions must be institutions of the minorities "in truth and in reality and not mere masked phantoms".

A nexus with the community must be shown. An institution imparting general secular education must show that it serves or promotes, in some manner, the interest of the minority community or a considerable section of it.

The founders must be Indian citizens. Article 30 protects minorities among the citizens of India, so a society of aliens founding a school here cannot claim it. That is from S.K. Patro v. State of Bihar, whose report has not been read here and which is named without a citation.

Establishment before 1950 is enough. The language of article 30(1) "is wide enough to cover both pre-Constitution and post-Constitution institutions", and the right to administer "clearly covers pre-Constitution schools".

What the right to administer includes

The founding case

Facts. In Re The Kerala Education Bill, 1957, (1959) 1 SCR 995, decided 22 May 1958. On a Presidential reference under article 143(1) the Court was asked whether clauses of a Kerala Bill controlling aided and recognised schools offended article 30(1). The Bill froze school assets, routed teacher appointments through a Public Service Commission panel, took over fee collection and the payment of salaries, and by clauses 14 and 15 let the Government take over schools.

Held. Article 30(1) gives minorities two rights, "(a) to establish, and (b) to administer", and the right to administer "cannot obviously include the right to maladminister". A State granting aid or recognition may therefore "prescribe reasonable regulations to ensure the excellence of the institutions to be aided". But it may not buy the right: to deny recognition "except upon terms tantamount to the surrender of their constitutional right of administration" is "in truth and in effect to deprive them of their rights under Art. 30(1)". On the answers reported, clauses 8(3) and 9 to 13 did not offend the article; clause 3(5), so far as it subjected aided minority institutions to clauses 14 and 15, did.

Why it matters. It is the source of the two propositions every later case repeats, and they cut in opposite directions: no right to maladminister, and no recognition on terms that surrender administration. Although there is no fundamental right to recognition, a right that cannot be exercised meaningfully without it cannot be defeated by the conditions attached to it.

The nine-judge case

Facts. The Ahmedabad St. Xaviers College Society v. State of Gujarat, 1974 AIR 1389, 1975 SCR (1) 173, decided 26 April 1974 by nine judges. The Society, a Christian denomination, ran an affiliated college and petitioned under article 32 against the Gujarat University Act 1949 as amended in 1972: section 33A(1)(a) imposed a governing body including a nominee of the Vice-Chancellor; section 33A(1)(b) imposed selection committees including such a nominee for the Principal and for teachers; sections 40 and 41 let the University take over all teaching and convert affiliated colleges into constituent colleges; sections 51A and 52A subjected dismissals and disputes to the Vice-Chancellor's approval and to arbitration.

Held. Articles 29 and 30 are not mutually exclusive, by a majority of six. There is no fundamental right to affiliation, by the full Court, "But recognition or affiliation is necessary for a meaningful exercise of the right to establish and administer educational institutions." The right to administer "is not an absolute right" and "is not free from regulation". On the sections, the majority held that section 33A(1)(a) and (1)(b) cannot apply to minority institutions, because their effect is "displacing the management and entrusting it to a different agency"; that sections 40 and 41 cannot have compulsory application, because a constituent college "does not retain its former individual character any longer and its minority character is lost"; and that sections 51A and 52A cannot apply, section 51A conferring "arbitrary power on the Vice-Chancellor to take away the right of administration".

Why it matters. It is the fullest catalogue of what administration means and the case that fixed the method: identify the facet of management the law touches, then ask whether it regulates or displaces. Khanna J.'s formulation, that the management "must be free of control so that the founders or their nominees can mould the institution as they think fit", is the sentence to quote.

The eleven-judge confirmation

Facts. T.M.A. Pai Foundation v. State of Karnataka, decided on 31 October 2002 by eleven judges. The report we hold carries no report reference, so the case is given by its date. Of the eleven questions referred, the third asked how far professional education is covered by article 30 and the eleventh what "education" means in the Constitution. The case is worked in full in [The Eleven-Judge Answer].

Held. On establishment and administration the Bench adopted Khanna J.'s language from St. Xaviers unchanged, and on reach it went further: "The use of the words 'of their choice' indicates that even professional educational institutions would be covered by Article 30." "Education" in the Constitution "means and includes education at all levels from the primary school level upto the post-graduate level. It includes professional education." The right to establish and administer educational institutions belongs to all citizens under articles 19(1)(g) and 26, "to minorities specifically under Article 30".

Why it matters. It settles that article 30 is not a schools-only right, which is what the medical and engineering college litigation was really about, and it places article 30 alongside the general right in article 19(1)(g) rather than instead of it.

A worked example

The Gomantak Marathi Shikshan Mandal, a society of Marathi speakers in Goa, takes over a failing English-medium school founded in 1930 by a trust of no particular community. The State later passes an Act requiring the school's managing committee to include two Government nominees, and acquires part of its playground at a valuation fixed by a formula in the Act.

Step one, is the society a minority? Marathi speakers in Goa are counted across the State; assume they are below half, and the door is open.

Step two, was it established by that minority? No. It was founded in 1930 by someone else and merely taken over. On the conjunctive reading the society has no article 30 right to administer it, and the Aligarh reasoning applies.

Step three, does the society have any other right? Yes. On T.M.A. Pai every citizen may establish and administer educational institutions under articles 19(1)(g) and 26, subject to articles 19(6) and 26(a). The claim must be pleaded there, not under article 30.

Step four, suppose the society had founded the school itself in 1955. Article 30(1) then applies, and the nominees are tested on the St. Xaviers method: do they regulate the management or displace it? Two outside nominees imposed on the committee displace the founders' choice of governing body, and on the holding as to section 33A(1)(a) the provision cannot apply.

Step five, the playground. Clause (1A) is engaged. The acquisition is not forbidden, but the amount must not restrict or abrogate the clause (1) right. A formula producing a nominal figure that leaves the school unable to function fails that test.

Step six, what if the State also cut the grant, saying it favours minority managements? That is clause (2), squarely.

What it does NOT mean

It does not mean a minority may run an institution badly. The right to administer "cannot obviously include the right to maladminister".

It does not mean a minority institution may teach only religion or only its own language. The choice is the minority's, and it extends to general secular education and to professional education.

It does not mean administering is enough. Establishment must be proved as a fact, and courts look behind the label.

It does not mean article 30(1) is absolute. It is subject to regulation, the subject of [State Control and Regulation]. What it is not subject to is displacement of the management.

Quick revision

• Article 30(1): all minorities, religious or linguistic, may establish and administer educational institutions of their choice. Two rights, conjunctive.
• "Establish" means to bring into existence; "administer" means to effectively manage and conduct the affairs of the institution.
• Establishment is a question of fact and must be proved; courts may pierce the minority veil; a real positive index is required.
• The right covers pre-Constitution institutions, general secular education and professional education.
• Article 30(1A), inserted by the Forty-fourth Amendment 1978 with effect from 20 June 1979: acquisition compensation must not restrict or abrogate the clause (1) right.
• Article 30(2): no discrimination in granting aid on the ground of minority management. It is not a right to aid.
• Kerala Education Bill: no right to maladminister; no recognition on terms surrendering administration.
• St. Xaviers, nine judges: articles 29 and 30 are not mutually exclusive; no fundamental right to affiliation, but affiliation is necessary for meaningful exercise; sections displacing the management cannot apply to minority institutions.

Test yourself

1. Why are "establish" and "administer" read conjunctively, and what follows for an institution founded by somebody else?

2. Quote article 30(1A) and explain what made it necessary in 1978.

3. What must a claimant prove to show that an institution was established by a minority?

4. List five facets of administration protected by article 30(1) and one that is not.

5. Does article 30 extend to a medical college? Give the eleven-judge Bench's reasoning.

6. Distinguish article 30(1) from the right of all citizens under articles 19(1)(g) and 26.