State Control and Regulation
Chapter Ninety-Three
Syllabus topic 7, "Right of minorities to establish and administer educational institutions and state control."
Pages 452 to 457 of 711
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".
State Control and Regulation
1980, as a list. Fazal Ali J. drew the authorities together into propositions, of which four carry the topic. The right does not give "a licence for maladministration". The State may take regulatory measures "to promote the efficiency and excellence of educational standards" and to secure the services of teachers. Under the garb of regulation it "cannot destroy the administrative autonomy of the institution". And the induction of an outside authority into the governing body "would be completely destructive of the fundamental right under article 30(1)".
Where the line has been drawn
| Subject | Permitted | Not permitted |
|---|---|---|
| Recognition and affiliation | Conditions for uniformity, efficiency and excellence; there is no fundamental right to affiliation | Conditions tantamount to surrender of administration |
| Governing body | Rules that the management itself applies | Imposing an outside nominee, or a new governing body |
| Appointment of teachers | Prescribing minimum qualifications, experience and other conditions bearing on merit | Vetoing the choice of a teacher who has the prescribed qualifications |
| Discipline | Requiring a fair procedure and an inquiry; limiting suspension to a contemplated inquiry into gross misconduct | Prior approval of an outside authority for dismissal, on unguided discretion |
| Pay and service conditions | Rules on scales, allowances and security of tenure; payment of salaries as a condition of aid | An appeal to an outside officer on all questions of fact and law, with no corresponding right in the management |
| Admission | Qualifications and minimum eligibility; a common entrance test for aided professional institutions | Regulating admission to unaided schools and undergraduate colleges beyond eligibility |
| Fees | Forbidding capitation fee and profiteering | Fixing the fees of an unaided institution |
The catalogue 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. A Christian denomination running an affiliated college challenged the Gujarat University Act 1949 as amended in 1972, under which a University nominee sat on the college's governing body and on its selection committees, the University could absorb all teaching, and dismissals needed the Vice-Chancellor's approval.
Held. The whole Court held there is no fundamental right to affiliation, "But recognition or affiliation is necessary for a meaningful exercise of the right to establish and administer educational institutions", and refusal to affiliate unless the minority surrenders administration would render article 30(1) "wholly illusory and indeed a teasing illusion". Section 33A could not apply to minority institutions, its effect being "displacing the management and entrusting it to a different agency". Sections 40 and 41 could not apply compulsorily, because a constituent college "does not retain its former individual character any longer and its minority character is lost". Section 51A could not apply, conferring "arbitrary power on the Vice-Chancellor to take away the right of administration". On teachers, once the minority has selected teachers who possess the requisite qualifications, "the State would have no right to veto the selection". Khanna J. rejected the argument that only a law wholly destructive of the right can be struck down: that "runs counter to the plain language of art. 13".
State Control and Regulation
Why it matters. It converts a slogan into a working test. Ask what facet of management the law touches, then ask whether it leaves the decision with the management or moves it elsewhere. The answer to the second question decides the case, and the size of the intrusion does not save it.
The appointment and discipline case
Facts. All Saints High School, Hyderabad v. Government of Andhra Pradesh, 1980 AIR 1042, 1980 SCR (2) 924, decided 4 February 1980 by three judges. The Andhra Pradesh Recognised Private Educational Institutions Control Act 1975 was passed to regulate teachers' service conditions and secure their tenure. Section 3(1) forbade dismissal, removal, reduction in rank or termination without the prior approval of a competent authority, a contravention leaving the teacher deemed in service; section 3(2) required that authority to approve if satisfied there were "adequate and reasonable grounds"; section 3(3) restricted suspension; section 4 gave teachers an appeal; section 6 controlled retrenchment; section 7 dealt with pay. Christian minority schools challenged sections 3 to 7 under article 30(1).
Held. Sub-sections (1) and (2) of section 3 are invalid and cannot be applied to minority institutions, Kailasam J. dissenting. The vice was not the protection of teachers but the transfer of the decision: in the absence of rules, the two sub-sections conferred on the competent authority "a wide and untrammeled discretion to interfere with the proposed order", and section 3(2) "under the guise on conferring the power of approval, confers upon the competent authority an appellate power of great magnitude", making it "a judge both of facts and on law". Sections 4 and 5 were unconstitutional: the appeal lay on all questions of fact and law "to the unguided scrutiny and unlimited review of the appellate authority", and no corresponding appeal was given to the management. Section 3(3)(a) and (b) and section 6 were valid, Fazal Ali J. dissenting, and section 7 was valid by the Court. Clause 3(3)(a) "contains but an elementary guarantee of freedom from arbitrariness to the teachers" and its restraints "bear a reasonable nexus with attainment of educational excellence"; a provision "founded so patently on plain reason is difficult to construe as an invasion of the right to administer an institution unless that right carried with it the right to maladminister".
State Control and Regulation
Why it matters. It is the case that shows the line running through a single statute. Rules that tell the management how to act are regulation. Rules that let an outsider substitute his own view for the management's are displacement, and the giveaway is unguided discretion, review on fact and law, and a remedy given to one side only.
The modern statement
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. Question 5(c) asked in terms whether statutory provisions regulating control over educational agencies and governing bodies, conditions of affiliation and recognition, appointment of staff and their service conditions, and regulation of fees interfere with the right of administration. The case is worked in full in [The Eleven-Judge Answer].
Held. For an unaided minority institution "the regulatory measure of control should be minimal", conditions of recognition and affiliation must be complied with, but in day to day management, including the appointment of staff and administrative control over them, "the management should have the freedom and there should not be any external controlling agency". The management must itself evolve "a rational procedure for the selection of teaching staff and for taking disciplinary action". The State "can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual" for appointment as teacher or principal, and may frame regulations governing service conditions of staff for whom it provides aid, "without interfering with the overall administrative control of the management over the staff". On money: "Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee." For the grievances of employees the Court directed that tribunals be constituted, presided over until then by a judicial officer of the rank of District Judge.
Why it matters. It restates the old line in the language of aid: the more public money an institution takes, the more regulation it must accept, and an unaided institution is regulated least. The tribunal direction also answers the practical objection to All Saints, that striking down the approval requirement leaves a dismissed teacher with nowhere to go.
A worked example
A State passes an Act applying to all aided schools. Section 4 says no teacher shall be appointed except from a panel prepared by a District Selection Board. Section 5 says a teacher may be dismissed only after an inquiry at which he is heard. Section 6 says salaries shall be paid directly by the Government into teachers' accounts. Section 7 says no headmaster shall be appointed without the Director's prior approval. A Jain trust running an aided school challenges all four.
State Control and Regulation
Step one, is article 30(1) engaged at all? Only if the trust is a minority in the State and established the school. Assume both, on [Who Is a Minority?] and [Article 30: To Establish and to Administer].
Step two, section 4. Appointment of teachers is a facet of administration. A panel prepared by an outside board removes the choice entirely, and on St. Xaviers the State may fix qualifications but may not veto or supplant the selection. Section 4 fails.
Step three, section 5. This regulates how the management acts and leaves the decision with it. It is the All Saints section 3(3) situation, a guarantee of fair procedure with a reasonable nexus to excellence. Section 5 stands.
Step four, section 6. Payment of salaries by the Government as a condition of aid was treated as a permissible regulation in the Kerala Education Bill opinion, and pay provisions were upheld in All Saints. Section 6 stands, so long as it does not carry with it control over who is paid.
Step five, section 7. Prior approval of an outside officer for the key appointment in the school is the All Saints section 3(1) vice: an unguided power in an outsider to override the management. Section 7 fails.
Step six, what if the school were unaided? The answer to Question 5(c) in T.M.A. Pai makes the case stronger still: for an unaided minority institution regulatory control "should be minimal" and there should be no external controlling agency over day to day management.
What it does NOT mean
It does not mean any regulation is valid because the school takes aid. Aid buys compliance with conditions that improve the institution. It does not buy the management.
It does not mean a law must destroy the right before it is struck down. That argument was expressly rejected in St. Xaviers as contrary to article 13.
It does not mean teachers are unprotected in a minority school. Regulations securing tenure, fair procedure and pay are valid; what fails is handing the decision to an outsider.
It does not mean the intensity of control is the same everywhere. It varies with aid, and with the level of the institution.
Quick revision
- Article 30(1) is couched in absolute terms but is read subject to regulation.
- Both extremes were rejected in 1958: no absolute immunity, and no unlimited conditions attached to aid or recognition.
- The right to administer does not include the right to maladminister.
- The method: improvement must be through the existing management, not by displacing it.
- Restrictions in the interest of the general public alone, and not for the benefit of the institution, offend autonomy.
- St. Xaviers: no fundamental right to affiliation, but affiliation on terms surrendering administration is a teasing illusion; qualifications may be prescribed, the selection may not be vetoed.
- All Saints: prior approval and an unguided appeal are void; restrictions on suspension, retrenchment and pay are valid.
- T.M.A. Pai: minimal control over unaided institutions; minimum qualifications may always be prescribed; no capitation fee; tribunals for staff grievances.
State Control and Regulation
Test yourself
1. State the two extreme positions rejected in 1958 and the reason each fails.
2. What is the difference between regulating and displacing a management? Illustrate from two sections of one statute.
3. Why was section 3(1) of the Andhra Pradesh Act invalid while section 3(3)(a) was valid?
4. May a State insist that teachers in a minority college hold a particular degree? May it reject the college's choice of a qualified teacher? Give authority for both answers.
5. How far may fees be regulated in an unaided minority institution?
6. "Unless the right carried with it the right to maladminister." Explain the use made of that phrase.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.