The Eleven-Judge Answer
Chapter Ninety-Four
Syllabus topic 7, "Right of minorities to establish and administer educational institutions and state control."
Pages 458 to 462 of 711
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".
The Eleven-Judge Answer
The provisions in play
Four articles carry the judgment, and it helps to have them in mind before the answers.
Article 19(1)(g): the right of all citizens "to practise any profession, or to carry on any occupation, trade or business", subject to reasonable restrictions under article 19(6).
Article 26(a): the right of every religious denomination, subject to public order, morality and health, "to establish and maintain institutions for religious and charitable purposes".
Article 29(2): "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."
Article 30(1): "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."
The case
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. It was not one dispute but a very large group of petitions and appeals filed over more than twenty years by trusts, societies and colleges, aided and unaided, minority and non-minority, against State laws and university rules controlling their admissions, their fees and their staff. Eleven questions were referred. Some were reframed when the hearing began, and the Court answered them under the heading "Answers to Eleven Questions".
Held. The answers, in the Court's own order.
Q.1, the meaning of "minorities" in article 30. "Linguistic and religious minorities are covered by the expression 'minority' under Article 30 of the Constitution. Since reorganisation of the State 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 at par in Article 30, have to be considered State-wise."
Q.2, Q.3(a), Q.6(a), Q.6(b) and Q.7, left open. What "religion" means in article 30(1); whether a sect may claim where its wider religion is the State's majority; the indicia of a minority educational institution; where such an institution may be located and whom it may prefer; and whether a linguistic non-minority in one State may set up a trust in another and claim minority status there. On each of these the Bench answered: "This question need not be answered by this Bench; it will be dealt with by a regular Bench."
Q.3(b), professional education. Covered. "The use of the words 'of their choice' indicates that even professional educational institutions would be covered by Article 30."
The Eleven-Judge Answer
Q.4 and Q.5, admission. For unaided minority schools and undergraduate colleges, "where the scope for merit-based selection is practically nil", admission "cannot be regulated by the concerned State or University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards". The right to admit students is "an essential facet of the right to administer", so the State may not interfere "so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of". A minority institution "does not cease to be so, the moment grant-in-aid is received"; but an aided institution must admit non-minority students "to a reasonable extent", the State notifying the percentage. A minority institution may keep its own procedure and method of admission, "but such a procedure must be fair and transparent", selection in professional and higher education must be on merit, and the procedure "should not tantamount to mal-administration".
Q.5(c), administration. For an unaided minority institution "the regulatory measure of control should be minimal"; conditions of recognition and affiliation must be met, but in day to day management "the management should have the freedom and there should not be any external controlling agency". The State "can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual" for appointment. "Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee."
Q.8, St. Stephen's. "The basic ratio laid down by this Court in the St. Stephen's College case 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, Unni Krishnan. The scheme framed there, and the direction to impose it, is unconstitutional "except where it holds that primary education is fundamental right". The principle that there should be no capitation fee and no profiteering is correct, and "Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering."
Q.10 and Q.11, non-minorities and the meaning of education. "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 "is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, to minorities specifically under Article 30", the general right being subject to articles 19(6) and 26(a).
Why it matters. Three things, and students usually give only the first. The unit holding fixed the meaning of "minority" for every case since, and it did so by an argument from the map: because States were carved out on language, a linguistic minority "can, therefore, logically only be in relation to a particular State", and religious minorities follow because article 30 puts the two on a par. The second is structural: the judgment locates the right to run an educational institution in articles 19(1)(g) and 26 for everybody, so article 30 is a special protection and not the only source of the right. The third is the replacement of fixed percentages by variable ones, which moved the fight from the Supreme Court to the notification of a State Government, and produced the litigation dealt with in [After the Eleven-Judge Answer].
The Eleven-Judge Answer
A worked example
Sacred Heart College, an unaided professional college in Kerala founded and run by a Christian society, is told by the State that it must fill half its seats through the State common entrance test at a fee the State fixes, and must obtain the Director's approval before appointing any lecturer.
Step one, is the college within article 30(1)? Christians are counted across Kerala. If they are a minority there and founded the college, yes.
Step two, is it aided? No. That is the fact that decides most of what follows, because the eleven-judge Bench graded regulation by aid.
Step three, the seats. Admission is an essential facet of administration. For an unaided professional institution the State may insist on merit, on transparency and on qualifications and minimum eligibility. It may not take half the intake and fill it itself: that is the Unni Krishnan scheme, held unconstitutional.
Step four, the fee. "Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee." The State may forbid capitation fee and profiteering; a reasonable surplus for expansion is permitted; fixing the fee is not.
Step five, the appointment. Prior approval by an outside officer is an external controlling agency over day to day management. The State may prescribe the minimum qualification and experience for a lecturer and no more.
Step six, change one fact. If the college were aided, the answers move: it would have to admit non-minority students to a reasonable extent under article 29(2), a common entrance test could be made a condition of admission, and service regulations for staff whose pay the State meets would be valid.
Aided and unaided, side by side
| Unaided minority institution | Aided minority institution | |
|---|---|---|
| Article 29(2) | Does not apply | Applies; non-minority students to a reasonable extent |
| Admission | State may fix qualifications and minimum eligibility only | Common entrance test may be required for professional courses |
| Fees | Not regulated; no capitation fee, no profiteering | Conditions may be attached to the aid |
| Day to day management | Minimal control; no external controlling agency | Service regulations valid for staff the State funds |
| Recognition and affiliation | Conditions must be complied with | Conditions must be complied with |
The Eleven-Judge Answer
What it does NOT mean
It does not mean the Bench decided who is a religious minority. It decided the unit and expressly left the content of "religion", the position of a sect, and the indicia of a minority institution to a regular Bench.
It does not mean St. Stephen's was overruled. Its basic ratio was accepted. What was rejected was the rigid ceiling of fifty per cent.
It does not mean Unni Krishnan disappeared. The holding that primary education is a fundamental right survives; the scheme of free and payment seats does not.
It does not mean unaided institutions are unregulated. Merit, transparency, recognition and affiliation conditions, minimum qualifications and the ban on capitation fee all remain.
Quick revision
- Eleven judges, decided 31 October 2002, on eleven referred questions; five of them were left to a regular Bench.
- The unit for a religious or linguistic minority under article 30 is the State, not the whole of India, because the States were reorganised on language and the two kinds of minority are on a par.
- Education moving to Entry 25 of the Concurrent List does not change the unit: the meaning cannot depend on who legislates.
- The right to establish and administer belongs to all citizens under articles 19(1)(g) and 26, and to minorities specifically under article 30.
- "Education" covers all levels up to post-graduate and includes professional education.
- Aid does not destroy minority character, but an aided institution must admit non-minority students to a reasonable extent; the percentage is notified by the State.
- St. Stephen's basic ratio accepted, its rigid fifty per cent rejected.
- The Unni Krishnan scheme is unconstitutional except as to primary education; no capitation fee, no profiteering, but a reasonable surplus is permitted.
Test yourself
1. Why was the case placed before eleven judges rather than seven? Give the reason recorded in the reference order.
2. State the answer to Question 1 in full and set out the two steps of reasoning behind it.
3. Which questions did the Bench decline to answer, and what did it say about them?
4. How does the permitted degree of State regulation differ between an aided and an unaided minority institution?
5. What survives of Unni Krishnan and what does not?
6. Where does a non-minority institution get its right to exist, and what is that right subject to?
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.