The Eleven-Judge Answer

In one line

Eleven judges sat to answer eleven questions about who may run a school or a college in India and on what terms, and the answer that has mattered most is the shortest one: you count a minority within a State, not across the country.

In the wording a student can write in an exam: in T.M.A. Pai Foundation v. State of Karnataka an eleven-judge Bench held that the right to establish and administer educational institutions is guaranteed to all citizens under articles 19(1)(g) and 26 and to minorities specifically under article 30; that "for the purpose of determining the minority the unit will be the State and not the whole of India"; that admission to unaided minority schools and undergraduate colleges cannot be regulated beyond qualifications and minimum eligibility; that an aided minority institution must admit non-minority students "to a reasonable extent", the percentage to be notified by the State rather than fixed at a rigid figure; and that the scheme framed in Unni Krishnan, except so far as it held primary education to be a fundamental right, is unconstitutional.

Why the case had to be heard

Three separate pressures brought eleven judges together, and an answer that does not name them misses the point of the case.

The unit question had never been settled. In 1958 the Court decided only that a Bill extending to the whole State required the count to be taken across that State, and expressly left the general question open. That gap had held for forty-four years.

Education had moved. The Forty-second Amendment put education into Entry 25 of the Concurrent List, so Parliament could now legislate on it. Every earlier decision belonged to the period when education was a State subject, and the reference order of 6 February 1997 said so in terms: the question of who is a "minority" had to be reconsidered because "the earlier case laws related to the pre-amendment era".

Two decisions were in trouble. A five-judge Bench doubted whether article 30 lets a minority institution choose its own method of selecting students, and doubted St. Stephen's. Separately, the scheme framed in Unni Krishnan, under which half the seats in a private professional college were "free seats" filled on a common entrance test at a minimal fee and cross-subsidised by "payment seats", had produced a result nobody intended: on the record placed before the Court, children of affluent families were taking the free seats and less affluent children the payment seats.

The matter went from five judges to seven and then, by the order of 6 February 1997, to eleven. On 19 March 1997 the Bench recorded that it "would not feel itself inhibited" by the views expressed in the Kerala Education Bill opinion or in St. Xaviers, the object being to read article 30(1) "in its pristine purity".