State Control and Regulation

In one line

The State may make rules that push a minority school towards being a better school, and it may not make rules that move the running of it into somebody else's hands.

In the wording a student can write in an exam: the right under article 30(1), though couched in absolute terms, is not absolute and is not free from regulation. The State may prescribe reasonable regulations to secure the excellence of the institution, the standards of education and the interests of teachers and students, and may make compliance a condition of aid, recognition or affiliation. It may not prescribe conditions which have the effect of impairing the right, and the test is whether the measure works through the existing management or displaces it: "If the administration has to be improved it should be done through the agency or instrumentality of the existing management and not by displacing it."

Why the law has this at all

Two positions were argued to the Supreme Court in 1958 and neither has ever been accepted.

The State's position was that a minority may found any school it likes and run it as it pleases, but the moment it asks for public money or for recognition it must take the terms offered. The institutions' position was that the right in article 30(1) is absolute and cannot be subjected to any restriction whatever. The Court described these as two extreme propositions and said neither could be sustained.

The reason neither works is practical. Without recognition, a school's pupils cannot sit university examinations or enter the public services, so an unregulated right is a right to run an institution nobody can use. And with unlimited conditions, aid becomes the price of surrender: the State says, in the Court's own paraphrase of the argument, "I have money and I shall distribute aid but I shall not give you any aid unless you surrender to me your right of administration." A legislature cannot do indirectly what it cannot do directly.

The line, in three formulations

1958, on aid and recognition. The right to administer "cannot obviously include the right to maladminister". A minority cannot demand aid for a school run "in unhealthy surroundings, without any competent teachers", so the State "may prescribe reasonable regulations to ensure the excellence of the institutions to be aided". But to deny recognition "except upon terms tantamount to the surrender of their constitutional right of administration" is in truth to deprive the minority of the right itself.

1974, on displacement. The right to administer "is not an absolute right" and "is not free from regulation", because "regulatory measures are necessary for ensuring orderly, efficient and sound administration". The limit is stated as a method: improvement must come "through the agency or instrumentality of the existing management and not by displacing it". A second limit is stated as a purpose: restrictions imposed "in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration".