Introduction
The Case of TMA Pai Foundation was a landmark 11-judge order which laid down the contours of governmental regulations on private institutions and still occupies the education field in so far as the constitutionality of statutes and regulations is concerned. Out of the many provided fundamental rights under Part III of the Constitution, it also specifically provides for the educational rights of the minorities to ‘establish and administer the educational institutions of their choice’ under Article 30.
Article 30: Right of minorities to establish and administer educational institutions
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Citation: (2002) 8 SCC 481: AIR 2003 SC 355
Judges: Quadri, S.S.M. (J), Pal, Ruma (J), Variava, S.N. (J), Balakrishnan, K.G. (J) Reddi, P.V. (J), Bhan, Ashok (J) Pasayat, Arijit (J)
Facts
T.M.A Pai is a trust whereas Manipal Institute of Technology is an educational institution which is owned and administered by the trust. An academic institution called ‘The Academy of General Education’ was formed by Dr. T.M.A Pai which was registered as a society under the Societies Registration Act in the place called Manipal which was in the state of Madras but after the recognition of the states, it has become a part of the state of Karnataka.
Many institutions were formed under the name of the same academy including Manipal Engineering College Trust. The object of the trust as indicated in the trust deed is to promote Konkani language, culture and also for the educational advancement of the students speaking in Konkani language in addition to all casts and communities.
With the object of prohibiting the evil collection of the fee in excess amount, the governor of the state promulgated an ordinance called the Karnataka Educational Institutions Ordinance, 1984 under the prohibition of the capital fee.
Questioning the validity of the said ordinance and the order of the state government which was dated on 19.07.1984 fixing the total intake of college and also earmarking 40% of the seats thereof as government seats, therefore, a writ petition was presented regarding the same. Thereof during the pendency of the petition, an act came into force fixing the rates of capitation fee and tuition fee chargeable to private unaided educational institutions.
As the college is not receiving any financial aid from the state government it is declared under the category of a private unaided educational institution.’
Issues
- Whether there exists a fundamental right to set up educational institutions and if so, under which provision?
- To what extent government may impose regulations upon private institutions?
- What is to be the unit to determine the existence of a religious or linguistic minority in relation to Article 30?
Arguments
Petitioners Arguments
- The petitioners contended that the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act is violative of Article 30 of the constitution which conferred a fundamental right on the linguistic and religious minorities to establish and administer the educational institutions of their choice.
- The petitioners contended that Konkani is a language of a section of people in the state which constitutes a minority.
- The petitioners contended that TMA PAI was a Konkani speaking person by birth therefore after his demise to commemorate his memory and to promote his objectives a Konkani speaking institution was established. As Konkani being a minority speaking the language in Karnataka they are entitled to protection under article 30 of the constitution.
- The petitioners contended that government cannot impose any restrictions on unaided minority institutions, as they are protected under Article 30.
Respondents Arguments
- The Respondents contended that the Manipal institution was not established by a minority and for the benefit of Konkani speaking people.
- The respondents contended that the Act has been enacted to destroy the practice of collecting capitation fee and commercialisation of education. Therefore the provisions of the Act are not violative of Article 30, 14 and 19 of the Constitution.
- The respondent contended that Article 30 is applicable to professional education.
- The respondent contention that Article 30 is not an absolute right, therefore the government can impose restrictions.
Judgement
The majority judgement consisting of 6 judges held that:-
- With regard to State law, the unit to determine a religious or linguistic minority can only be the State.
- The minorities’ rights under Article 30(1) cover professional education as indicated by the use of the words “of their choice”.
- Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations on that behalf.
- Article 30(2) only means that a minority institution shall not be discriminated against where aid to educational institutions is granted. If an abject surrender of the right to management is made a condition of aid, the denial of aid would violate Article 30(2).
- The right conferred on the minorities by Art. 30(1) is not absolute. It has to be read subject to Art. 29(2) and other fundamental rights. Minority educational institutions thus become divisible into two categories, viz.: aided educational institutions and unaided educational institutions. The unaided institutions enjoy much greater autonomy than aided institutions.
- As long as the minority educational institution permits the admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant.
- Right of minorities includes right to determine the procedure and method of admission and selection of students which must be fair and transparent and based on merit for professional and higher education colleges.
- Even unaided minority institution cannot ignore merit. In the case of an aided institution, for non-minority students, the State can regulate the admission which has to be merit-based subject to the reservation policy of the State. Merit to be determined by an entrance test or by any other method with consideration for weaker sections.
- In the case of unaided minority institutions, the regulatory measure of control by the State should be minimal though the condition of recognition and of affiliation have to be complied with, and though matters of appointment of teaching and non-teaching staff and administrative control over them would be beyond regulation. Fees charged by unaided institutions cannot be regulated but they cannot charge capitation fee.
- In the case of aided minority institutions, regulations can be provided for conditions of service of teaching and other staff without interfering with the overall administrative control.
- Fifty percent of the total seats in the educational institutions of the petitioner should select the candidates selected by the state government on the basis of a competitive examination or a test. The candidates who get selected in such a way should pay scales of fee as applicable to this class of students as determined by the State Government from time to time.
Conclusion
I may conclude it by stating that it was held that “the right to establish and maintain educational institutions may also be sourced to Article 26 (a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. The question, whether followers of a sect or denomination of a particular religion can claim minority status even though followers of that religion are in majority in that State, was left unanswered to be decided by a regular Bench.