Minority Educational Institutions

2003, five judges. Islamic Academy of Education v. State of Karnataka was a batch of petitions seeking clarification of Pai. Held. That a professional institution may fix its own fee structure but may not profiteer or charge a capitation fee, and that each State should constitute a COMMITTEE HEADED BY A RETIRED HIGH COURT JUDGE to approve fee structures and a second committee to oversee admissions and the common entrance test. Note that a Bench of five was clarifying a Bench of eleven, which is why what it said about admissions did not last.

2005, seven judges. In P.A. Inamdar v. State of Maharashtra, decided on 12 August 2005. Facts. A batch of matters on how far the State may regulate admission and fees in private professional colleges, minority and non-minority, after Pai and Islamic Academy. Held. That ADMISSION OF STUDENTS TO UNAIDED MINORITY EDUCATIONAL INSTITUTIONS, that is schools and undergraduate colleges where the scope for merit-based selection is practically nil, CANNOT BE REGULATED by the State or the university, except by prescribing qualifications and minimum conditions of eligibility in the interest of academic standards; that fees charged by unaided institutions cannot be regulated, BUT NO INSTITUTION MAY CHARGE A CAPITATION FEE; and that service conditions of staff for whom the State provides aid may be regulated without interfering with the management's overall administrative control. Why it matters here is that it is the high point of institutional autonomy under article 30, and the decision Parliament answered within months.

2005, Parliament. The Constitution (Ninety-third Amendment) Act 2005 inserted article 15(5): nothing in article 15 or in article 19(1)(g) shall prevent the State from making any special provision by law for the advancement of socially and educationally backward classes or of Scheduled Castes and Scheduled Tribes so far as such provisions relate to their admission to educational institutions INCLUDING PRIVATE EDUCATIONAL INSTITUTIONS, WHETHER AIDED OR UNAIDED, OTHER THAN THE MINORITY EDUCATIONAL INSTITUTIONS REFERRED TO IN CLAUSE (1) OF ARTICLE 30. The exception in the last line is the whole point of the clause for this chapter: reservation may be imposed on a private unaided non-minority college and may not be imposed on a minority one.

2012, three judges. In Society for Un-aided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1; AIR 2012 SC 3445, decided on 12 April 2012. Facts. Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act 2009 requires a private unaided school and a specified-category school to admit in class I at least TWENTY-FIVE PER CENT of the strength of that class from children of weaker sections and disadvantaged groups in the neighbourhood, and to give them free elementary education, the State reimbursing the expenditure under section 12(2). Associations of private unaided schools, including minority schools, challenged it under articles 19(1)(g) and 30(1). Held. By a majority, that the Act is valid and applies to government schools, to AIDED schools INCLUDING AIDED MINORITY schools, to specified-category schools and to UNAIDED NON-MINORITY schools; but that sections 12(1)(c) and 18(3) infringe the freedom of UNAIDED MINORITY schools under article 30(1), and on the principle of severability the Act does not apply to them.

The judgment was to operate from the academic year 2012-13 and admissions already made by unaided minority schools were not to be reopened. Radhakrishnan J. dissented, holding that article 21A casts the obligation on the STATE and not on unaided institutions of either kind. Why it matters here is that it is the case in which the aided-unaided line was applied to a welfare statute, and the dissent is worth knowing because it won two years later.

2014, five judges. In Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1; AIR 2014 SC 2114, decided on 6 May 2014. Facts. A Bench of five was constituted to decide whether the Ninety-third Amendment inserting article 15(5) and the Eighty-sixth Amendment inserting article 21A damaged the basic structure, and whether the Act of 2009 applied to minority schools, aided as well as unaided. Held. That both amendments are valid and do not alter the basic structure, and that the Act of 2009 is not ultra vires article 19(1)(g); but that the Act of 2009, IN SO FAR AS IT APPLIES TO MINORITY SCHOOLS, AIDED OR UNAIDED, covered by article 30(1), IS ULTRA VIRES the Constitution, and to that extent the 2012 holding that the Act applies to aided minority schools is not correct. Why it matters here is that it is the present law and it goes further than the aided-unaided line: NO minority school, of either kind, is subject to the Right to Education Act.

What the sequence adds up to

On a private unaided NON-MINORITY institution: the State may impose reservation under article 15(5); the Act of 2009 and its twenty-five per cent obligation apply; fees cannot be regulated but a capitation fee is forbidden.

On a private unaided MINORITY institution: article 15(5) expressly excepts it; the Act of 2009 does not apply to it; admissions cannot be regulated except as to eligibility and standards; a capitation fee is still forbidden.

On an AIDED MINORITY institution: the Act of 2009 does not apply to it after Pramati; but it has less autonomy than an unaided institution on Pai, so service conditions of aided staff and academic regulation reach it, and on St. Stephen's its preference to its own community is capped.

On every institution of every kind: no capitation fee, no maladministration, and the right to a fair and transparent admission procedure.

A worked example

An unaided school established and administered by a linguistic minority in a State refuses to reserve twenty-five per cent of its class I seats under section 12(1)(c) of the Act of 2009. The State threatens to withdraw its recognition. Advise.

First, is the school within article 30(1)? Established by the minority, administered by the minority, and the minority determined by reference to the population of the STATE on T.M.A. Pai Foundation.

Second, does the Act of 2009 apply to it? No. On Society for Un-aided Private Schools of Rajasthan section 12(1)(c) does not apply to an unaided minority school, and on Pramati the Act does not apply to any minority school, aided or unaided.

Third, can the State use recognition as a lever? No, for the same reason aid cannot be used as one. Recognition and affiliation may be made subject to reasonable conditions directed at standards, but not to a condition that would abrogate the article 30(1) right.

Fourth, would it be different if the school took aid? Under Society for Un-aided it would have been, because that judgment applied the Act to aided minority schools. After Pramati it is not. That correction is the single most examinable movement in the whole sequence.

Fifth, what if the school were unaided but not a minority school? Then section 12(1)(c) applies, on the majority in the 2012 case, and reservation may also be imposed under article 15(5).

Distinctions

What it does NOT mean

It does not mean minority institutions are outside the law. A capitation fee is forbidden to every institution. So is maladministration, and so is an admission procedure that is not fair and transparent.

It does not mean article 15(5) was struck down. Pramati upheld both the Ninety-third and the Eighty-sixth Amendments as consistent with the basic structure. What article 15(5) does is except minority institutions by its own terms.

It does not mean the Act of 2009 is invalid. It is valid. It simply does not apply to minority schools.

It does not mean Islamic Academy is still good on admissions. Its admission directions were substantially reconsidered by seven judges in Inamdar two years later; the fee committees survive.

And it does not mean aid is irrelevant. Aid still fixes the degree of permissible regulation on administration, appointment and admission preference. What Pramati removed from the aided minority school is the Right to Education Act, not the whole regulatory apparatus.

Quick revision

Four questions: administration, admission, appointment, aid. Pai 2002, eleven judges: State is the unit; unaided most autonomous, aided less; no right to maladminister. Islamic Academy 2003, five judges: fee committee headed by a retired High Court judge, admission committee, no profiteering, no capitation fee. Inamdar 2005, seven judges: unaided minority admissions unregulable save for eligibility and academic standards; fees unregulable but no capitation fee; aided staff service conditions regulable. Ninety-third Amendment 2005: article 15(5) permits reservation in private aided and unaided institutions OTHER THAN minority institutions under article 30(1). Society for Un-aided 2012: section 12(1)(c), twenty-five per cent of class I; applies to government, aided including aided minority, specified-category and unaided non-minority schools; not to unaided minority schools; Radhakrishnan J. dissenting. Pramati 2014, five judges: article 15(5) and article 21A valid; the Act of 2009 ultra vires so far as it applies to minority schools AIDED OR UNAIDED, correcting the 2012 position.

Test yourself

1. Set the six steps of the sequence out in order with the Bench strength of each. Pai, eleven, 2002; Islamic Academy, five, 2003; Inamdar, seven, 2005; the Ninety-third Amendment, Parliament, 2005; Society for Un-aided, three, 2012; Pramati, five, 2014.

2. What did Inamdar hold about admissions to unaided minority institutions? That they cannot be regulated by the State or the university, except by prescribing qualifications and minimum conditions of eligibility in the interest of academic standards.

3. What is the closing exception in article 15(5) and why does it matter? The clause permits special provision for admission to private educational institutions "other than the minority educational institutions referred to in clause (1) of article 30". It means reservation may be imposed on a private unaided non-minority college but not on a minority one.

4. Does the Right of Children to Free and Compulsory Education Act 2009 apply to an aided minority school? No. It did on the 2012 majority, but Pramati held in 2014 that the Act is ultra vires so far as it applies to minority schools, aided or unaided.

5. What obligation does section 12(1)(c) impose and on whom? To admit in class I at least twenty-five per cent of the strength of that class from children of weaker sections and disadvantaged groups in the neighbourhood and to give them free elementary education, with reimbursement under section 12(2). It binds unaided non-minority schools and specified-category schools; aided schools have their own proportional obligation under section 12(1)(b), subject to the same minimum.

6. Which restriction applies to every institution regardless of minority status or aid? The prohibition on charging a capitation fee, stated in Islamic Academy and repeated in Inamdar, and reinforced by section 13 of the Act of 2009.

7. Which judge's dissent became the law two years later, and on what point? Radhakrishnan J. in the 2012 case, who held that the obligation under article 21A rests on the STATE and not on unaided institutions. Pramati reached the same result for minority schools of both kinds.