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case laws on article 30 part 1


Supreme Court of India

Christian Medical College ... vs Union Of India on 29 April, 2020

19. We first advert to take note that various decisions rendered by this Court in respect of the right of minority as stated under Article 30 of the Constitution of India.


20. In Re The Kerala Education Bill, 1957, AIR 1958 SC 956, question arose concerning right of the Government to prescribe qualification to be possessed by the incumbents for appointment as teachers in aided or recognized schools. The State Public Service Commission was empowered to select candidates for appointment as teachers in Government and aided schools. The Court opined that minority cannot ask for the aid or recognition for an educational institution without competent teachers and fair standards. The choice does not necessarily militate against the claim of the State to insist on reasonable regulations to ensure the excellence of the institutions to be aided or even recognized. The Court held thus:


“(29) Their grievances are thus stated: The gist of the right of administration of a school is the power of appointment, control, and dismissal of teachers and other staff. But under the said Bill such power of management is practically taken away. Thus the manager must submit annual statements (Cl.

5). The fixed assets of the aided schools are frozen and cannot be dealt with except with the permission of the authorised officer (Cl. 6). No educational agency of an aided school can appoint a manager of its choice and the manager is completely under the control of the authorised officer, for he must keep accounts in the manner he is told to do and to give periodical inspection of them and on the closure of the school the accounts must be made over to the authorised officer (Cl. 7). All fees etc. collected will have to be made over to the Government (Cl. 8(3)). Government will take up the task of paying the teachers and the non­teaching staff (Cl. 9). Government will prescribe the qualification of teachers (Cl. 10). The school authorities cannot appoint a single teacher of their choice, but must appoint persons out of the panel settled by the Public Service Commission (Cl. 11). The school authorities must provide amenities to teachers and cannot dismiss, remove, reduce, or even suspend a teacher without the previous sanction of the authorised officer (Cl. 12). …… (31) We are thus faced with a problem of considerable complexity apparently difficult of solution. There is, on the one hand the minority rights under Art. 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two. The directive principles cannot ignore or override the fundamental rights but must, as we have said, subserve the fundamental rights. We have already observed that Art. 30(1) gives two rights to the minorities, (1) to establish and (2) to administer educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided. Learned Attorney­General concedes that reasonable regulations may certainly be imposed by the State as a condition for aid or even for recognition... ...Clauses 6, 7, 9, 10, 11, 12, 14, 15, and 20 relate to the management of aided schools. Some of these provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as reasonable regulations or conditions for the grant of aid. Clauses 9, 11(2) and 12(4) are, however, objected to as going much beyond the permissible limit. It is said that by taking over the collections of fees etc., and by undertaking to pay the salaries of the teachers and other staff the Government is in reality confiscating the school fund and taking away the prestige of the school, for none will care for the school authority. Likewise Cl. 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission which, apart from the question of its power of taking up such duties, may not be qualified at all to select teachers who will be acceptable to religious denominations and in particular sub­cl. (2) of that clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and may be otherwise weak educationally. Power of dismissal, removal, reduction in rank, or suspension is an index of the right of management, and that is taken away by Cl. 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of Cls. 9, 11 and 12 are designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation and protect the backward classes, we are prepared, as at present advised, to treat these clauses 9, 11(2) and 12(4) as permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. We, however, find it impossible to support Cls. 14 and 15 of the said Bill as mere Regulations. The provisions of those clauses may be totally destructive of the rights under Art. 30(1). It is true that the right to aid is not implicit in Art. 30(1) but the provisions of those clauses, if submitted to on account of their factual compulsion as condition of aid, may easily be violative of Art. 30(1) of the Constitution. Learned Counsel for the State of Kerala recognizes that Cls. 14 and 15 of the Bill may annihilate the minority communities' right to manage educational institutions of their choice but submits that the validity of those clauses is not the subject matter of question 2. But, as already explained, all newly established schools seeking aid or recognition are, by Cl. 3(5), made subject to all the provisions of the Act. Therefore, in a discussion as to the constitutional validity of Cl. 3(5) a discussion of the validity of the other clauses of the Bill becomes relevant, not as and by way of a separate item but in determining the validity of the provisions of Cl. 3(5). In our opinion, sub­cl. 3 of Cl. 8 and Cls. 9, 10, 11, 12 and 13 being merely regulatory do not offend Art. 30(1), but the provisions of sub­cl. (5) of cl. 3 by making the aided educational institutions subject to Cls. 14 and 15 as conditions for the grant of aid do offend against Art. 30(1) of the Constitution.” (emphasis supplied)

21. In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., (1963) 3 SCR 837, the Court again considered the matter and observed that educational institutions cater to the needs of the citizens or section thereof. Regulation made in the real interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictive on the substance of the right, which is guaranteed, they secure the proper functioning of the institution in the matter of education. It was also observed that regulation must satisfy a dual test ­ the test of reasonableness and that it is regulative of the educational character of the institution and is conducive to making the institution a capable vehicle of education for the minority community or other persons who resort to it.


In Rev. Father W. Proost and Ors. v. State of Bihar and Ors., AIR 1969 SC 465, the Court observed thus:


“8. In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script, or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script, or culture, and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.”

22. In Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat and Anr., (1974) 1 SCC 717, a college was run by the minority.


A Bench of 9­Judges of this Court considered the question whether Sections 40 and 41 of the Gujarat University Act, 1949 violated Section 30, which provided all colleges within the University area would be governed by the statutes of the University which may provide for minimum educational qualifications for teachers and tutorial staff.


The University may approve the appointments of teachers to coordinate and regulate the facilities provided and expenditure incurred. The Court opined that regulation which serves the interests of the teachers are of paramount importance in good administration, education should be a great cohesive force in developing integrity of the nation, thus:


“19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims, and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient, and sound administration. Das, C.J., in the Kerala Education Bill case (supra) 1959 SCR 995: AIR 1958 SC 956, summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal­administer.


30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks, and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character.


31. Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline, and fairness in administration are necessary for preserving harmony among affiliated institutions.


46. The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education.


47. In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration.


90. We may now deal with the scope and ambit of the right guaranteed by clause (1) of Article 30. The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer educational instructions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right, which is guaranteed: they secure the proper functioning of the institution, in matters educational [see observations of Shah, J. in Rev. Sidhajbhai Sabhai (supra), [(1963 3 SCR 837] p. 850]. Further, as observed by Hidyatullah, C.J. in the case of Very Rev. Mother Provincial (supra) [(1971) 1 SCR 734], the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations, they must be followed, subject, however, to special subjects which the institutions may seek to teach, and to a certain extent, the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such, although they may indirectly affect it. Yet the right of the State to regulate education, educational standards, and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.


92. A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30. At the same time, it has to be ensured that under the power of making regulations, nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in the case of Rev. Sidhajbhai Sabhai (supra) [(1963 3 SCR 837], regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution effective as an educational institution. Such regulation must satisfy a dual test — the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.


94. If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe regulations and insist that they should be complied with before it would grant affiliation or recognition to an educational institution. To deny the power of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe regulations which must be complied with before an institution can seek and retain affiliation and recognition. Question then arises whether there is any limitation on the prescription of regulations for minority educational institutions. So far as this aspect is concerned, the authority prescribing the regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable.” (emphasis supplied) The Court held that it is permissible for the State to prescribe qualifications for teachers. It observed:


“176. Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a degree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university.

Recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which is unrelated to the purpose can be imposed. If besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from regulations by the legislature or the university if it wants affiliation or recognition, but the character of the permissible regulations must depend upon their purpose. As we said, such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a regulation comes up for consideration before the Court, the question to be asked and answered is whether the regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a regulation is in the general interest of the public has no relevance if it does not advance the excellence of the institution as a vehicle for general secular education as, ex­hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interests of the minority community and those persons who resort to it.


197. On the second question, I have nothing significant to add to what has fallen from My Lord the Chief Justice. I am in entire agreement with the view that, although, Articles 29 and 30 may supplement each other so far as certain rights of minorities are concerned, yet, Article 29 of the Constitution does not, in any way, impose a limit on the kind or character of education which a minority may choose to impart through its Institution to the children of its own members or to those of others who may choose to send their children to its schools. In other words, it has a right to impart a general secular education. I would, however, like to point out that, as rights and duties are correlative, it follows, from the extent of this wider right of a minority under Article 30(1) to impart even general or non­denominational secular education to those who may not follow its culture or subscribe to its beliefs, that, when a minority Institution decides to enter this wider educational sphere of national education, it, by reason of this free choice itself, could be deemed to opt to adhere to the needs of the general pattern of such education in the country, at least whenever that choice is made in accordance with statutory provisions. Its choice to impart an education intended to give a secular orientation or character to its education necessarily entails its assent to the imperative needs of the choice made by the State about the kind of “secular” education which promotes national integration or the elevating objectives set out in the preamble to our Constitution, and the best way of giving it. If it is part of a minority's rights to make such a choice, it should also be part of its obligations, which necessarily follow from the choice to adhere to the general pattern. The logical basis of such a choice is that the particular minority Institution, which chooses to impart such general secular education, prefers that higher range of freedom where, according to the poet Rabindranath Tagore, "the narrow domestic walls" which constitute barriers between various sections of the nation will crumble and fall. It may refuse to accept the choice made by the State of the kind of secular education the State wants or of the way in which it should be given. But, in that event, should it not be prepared to forego the benefits of recognition by the State? The State is bound to permit and protect the choice of the minority Institution, whatever that might be. But, can it be compelled to give it a treatment different from that given to other Institutions making such a choice?


221. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. This may explain why "standards" of education were spoken as "not part of management" at all. It meant that the right to manage, having been conferred in absolute terms, could not be interfered with at all although the object of that management could be determined by a general pattern to be laid down by the State, which could prescribe the syllabi and standards of education. Speaking for myself, I find it very difficult to separate the objects and standards of teaching from a right to determine who should teach and what their qualifications should be. Moreover, if the “standards of education” are not part of management, it is difficult to see how they are exceptions to the principle of freedom of management from control. Again, if what is aimed at directly is to be distinguished from an indirect effect of it, the security of tenure of teachers and provisions intended to ensure fair and equitable treatment for them by the management of an institution would also not be directly aimed at interference with its management. They could more properly be viewed as designed to improve and ensure the excellence of teachers available at the institution, and, therefore, to raise the general standard of education. I think that it is enough for us to distinguish this case on the ground that the provisions to be interpreted by us are different, although, speaking for myself, I feel bound to say, with great respect, that I am unable to accept every proposition found stated there as correct. In that case, the provisions of the Kerala University Act 9 of 1969, considered there were inescapable for the minority institutions which claimed the right to be free from their operation. As I have already observed, in the case before us, Section 38­B of the Act provides the petitioning College before us with a practically certain mode of escape from the compulsiveness of provisions other than Sections 5, 40, and 41 of the Act if claims made on its behalf are correct.


232. Even if Article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only to absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of regulation and control when a minority institution enters the wider sphere of general secular and non­denominational education, largely employs teachers who are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in management. In other words, the degree of reasonably permissible control must vary from situation to situation. For the reasons already given above, I think that, apart from Sections 5, 40 and 41 of the Act, which directly and unreasonably impinge upon the rights of the petitioning minority managed college, protected by Article 30(1) of the Constitution, I do not think that the other provisions have that effect. On the situation under consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, a means of escape from the impugned provisions other than Sections 5, 40 and 41 of the Act by resorting to Section 38B of the Act.” (emphasis supplied)


23. In The Gandhi Faiz­e­am College, Shahjahanpur v. University of Agra and Anr., (1975) 2 SCC 283, the Court considered whether statute framed by University of Agra infringed fundamental rights of the minority community and observed thus:


“16. The discussion throws us back to a closer study of Statute 14­A to see if it cuts into the flesh of the management’s right or merely tones up its health and habits. The two requirements the University asks for are that the managing body (whatever its name) must take in (a) the Principal of the College; (b) its seniormost teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right? On a careful reflection and conscious of the constitutional dilemma, we are inclined to the view that this case falls on the valid side of the delicate line. Regulation which restricts is bad, but regulation which facilitates is good. Where does this fine distinction lie? No rigid formula is possible, but a flexible test is feasible. Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authority's fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedom."

(emphasis supplied) The majority negated the challenge. It was held that regulation which restricts is bad, but provision which facilitates is good.

24. In Frank Anthony Public School Employees' Association v. Union of India and others, (1986) 4 SCC 707, question arose whether teachers and other employees working in an unaided school were entitled to same pay­scale, allowances, and benefits. The Court allowed the petition and opined thus:


“16. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education.” (emphasis supplied)

25. In Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College, Jamalia and others, (1990) 1 SCC 428, the Court held that minorities have the right to establish and administer educational institution of their own choice. Still, they have no right to maladminister, and the State has the power to regulate the management and administration of such institutions in the interest of educational need and discipline of the institution. The Court held thus:


“6. The question which arises for consideration is whether Section 7(2)(n) which confers power on the Board to dissolve the Managing Committee of an aided and recognised Madarasa institution violates the minorities constitutional right to administer its educational institution according to their choice. This Court has all along held that though the minorities have right to establish and administer educational institution of their own choice but they have no right to maladminister and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have indirect effect on the absolute right of minorities but that would not violate Article 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions. The State has, however, no power to completely take over the management of a minority institution. Under the guise of regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender its right of administration. In State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, Section 63(1) of the Kerala University Act, 1969 which conferred power on the government to take over the management of a minority institution on its default in carrying out the directions of the State Government was declared ultra vires on the ground that the provisions interfered with the constitutional right of a minority to administer its institution. Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving Managing Committee or by appointing ad hoc committees in place thereof. In the instant case Section 7(2)(n) is clearly violative of constitutional right of minorities under Article 30(1) of the Constitution insofar as it provides for dissolution of Managing Committee of a Madarasa. We agree with the view taken by the High Court.” (emphasis supplied)

26. In St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, concerning admission process adopted by aided minority institutions, various questions were raised thus:


“41. It was contended that St. Stephen’s College after being affiliated to the Delhi University has lost its minority character. The argument was based on some of the provisions in the Delhi University Act and the Ordinances made thereunder. It was said that the students are admitted to the University and not to the College as such. But we find no substance in the contention. In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice. The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or reorganised if the right is to be recognised and maintained. Reasonable regulations however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1).

60. The right to select students for admission is a part of administration. It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. The Bombay Government order which prevented the schools using English as the medium of instruction from admitting students who have a mother tongue other than English was held to be invalid since it restricted the admission pattern of the schools [State of Bombay v. Bombay Education Society, (1955) 1 SCR 568]. The Gujarat Government direction to the minority run college to reserve 80 per cent of seats for government selected candidates with a threat to withdraw the grant­in­aid and recognition was struck down as infringing the fundamental right guaranteed to minorities under Article 30(1) of the Constitution [Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837]. In Rt. Rev. Magr. Mark Netto v. State of Kerala, (1979) 1 SCC 23, the denial of permission to the management of a minority school to admit girl students was held to be bad. The Regional Deputy Director in that case refused to give sanction for admission of girl students on two grounds: (i) that the school was not opened as a mixed school and that the school has been run purely as a boys school for 25 years; and


(ii) that there was facility for the education of girls of the locality in a nearby girls school which was established by the Muslims and was also a minority institution. This Court noted that the Christian community in the locality wanted their girls also to receive education in the school maintained specially by their own community. They did not think it in their interest to send their children to the Muslim girls school run by the other minority community. The withholding of permission for admission of girl students in the boys minority school was violative of Article 30(1). It was also observed that the rule sanctioning such refusal of permission crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30(1). The Court restricted the operation of the rule and made it inapplicable to the minority educational institution. In Director of School Education, Government of T.N. v. Rev. Brother G. Arogiasamy, AIR 1971 Mad 440, the Madras High Court had an occasion to consider the validity of an uniform procedure prescribed by the State Government for admission of candidates to the aided training schools. The government directed that the candidates should be selected by the school authorities by interviewing every candidate eligible for admission and assessing and awarding marks in the interview. The marks awarded to each candidate in the interview will be added to the marks secured by the candidate in the SSLC public examination. On the basis of the aggregate of marks in the SSLC examination and those obtained at the interview the selection was to be made without any further discretion. The High Court held that the method of selection placed serious restrictions on the freedom of the minority institution to admit their own students. It was found that the students of the minority community could not compete with the students belonging to other communities.


The applications of students from other communities could not be restricted under law. The result was that the students of minority community for whose benefit the institution was founded, had little chance of getting admission. The High Court held that the government order prescribing the uniform method of selection could not be applied to minority institutions.


78. Having set the scene, we can deal with the provisions of Articles 29(1) and 30(1) relatively quickly. Under Article 29(1) every section of the citizens having a distinct language, script or culture of its own has the right to conserve the same. Under Article 29(1), the minorities — religious or linguistic — are entitled to establish and administer educational institutions to conserve their distinct language, script or culture. However, it has been consistently held by the courts that the right to establish an educational institution is not confined to purposes of conservation of language, script or culture. The rights in Article 30(1) are of wider amplitude. The width of Article 30(1) cannot be cut down by the considerations on which Article 29(1) is based. The words “of their choice” in Article 30(1) leave vast options to the minorities in selecting the type of educational institutions which they wish to establish. They can establish institutions to conserve their distinct language, script or culture or for imparting general secular education or for both the purposes. (See: Father W. Proost v. State of Bihar, (1969) 2 SCR 73, Ahmedabad St. Xavier’s College v. State of Gujarat, (1974) 1 SCC 717; and Kerala Education Bill case, 1959 SCR 995.)” (emphasis supplied) The decision in St. Stephen's College (supra) has been analysed by my esteemed brother Lalit, J. in Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah and Ors., 2020 (1) SCALE 345, thus:


“28. In St. Stephen's College vs. University of Delhi, (1992) 1 SCC 558 a Bench of five Judges of this Court had an occasion to consider the admission process adopted by two aided minority institutions viz. St. Stephen's College at Delhi and Allahabad Agricultural Institute at Naini. The factual context as summed­up in the majority judgment authored by Shetty, J., was as under:

“68. It is not in dispute that St. Stephen's College and Allahabad Agricultural Institute are receiving grant­in­aid from the government. St. Stephen's College gives preference to Christian students. The Allahabad Agricultural Institute reserves 50 per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians.


69. It was argued for the University and the Students Union that since both the institutions are receiving State aid, the institutional preference for admission based on religion is violative of Article 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For institutions, on the other hand, it was claimed that any preference given to the religious minority candidates in their own institutions cannot be a discrimination falling under Article 29(2). The institutions are established for the benefit of their community and if they are prevented from admitting their community candidates, the purpose of establishing the institutions would be defeated. The minorities are entitled to admit their candidates by preference or by reservation. They are also entitled to admit them to the exclusion of all others and that right flows from the right to establish and administer educational institutions guaranteed under Article 30(1).” 28.1. The majority judgment dealt with the submissions raised by the institution as under:


“80. Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. The choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. It was pointed out in Re, Kerala Education Bill that the minorities cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have contained the words "for their own community". In the absence of such words it is legally impermissible to construe the article as conferring the right on the minorities to establish educational institution for their own benefit.


81. Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have a relatively homogeneous society. It may lead to religious bigotry which is the bane of mankind. In the nation building with secular character sectarian schools or colleges, segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the Constitution. Every educational institution irrespective of community to which it belongs is a 'melting pot' in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.” *** 28.3. The majority Judgment, then, considered the matter from the perspective of "Rights of Minorities and Balancing Interest" and observed:


“101. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must have a reasonable relation between the aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. In Sidhajbhai case (1963) 3 SCR 837 the government order directing the minority run college to reserve 80 per cent of seats for government nominees and permitting only 20 per cent of seats for the management with a threat to withhold the grant­in­aid and recognition was struck down by the Court as infringing the fundamental freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo­ Indian community for ten years from the commencement of the Constitution. Unlike Article 30(2) it conferred a positive right on the Anglo­Indian community to get grants from the government for their educational institutions, but subject to the condition that at least 40 per cent of annual admission were made available to members of other communities.


102. In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.” 28.4. It was also observed that regulations which serve the interest of students and teachers and preserve the uniformity in standards of education amongst the affiliated institutions could validly be made. The relevant discussion in para 59 was as under:


“59. The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).” 28.5. The dissenting opinion of Kasliwal, J. quoted a passage from the Constituent Assembly Debates (CAD) touching upon the matter in issue as under:­ “137. These were Articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution.


Firstly, Dr. B.R. Ambedkar said in relation

to draft Article 23(2) corresponding to the present

Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said:


“Now, with regard to the second clause I think it has not been sufficiently well understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant­in­aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such instruction, it shall not give instruction to, or make it compulsory upon, the children belonging to other communities unless and until they obtain the consent of the parents of these children. That, I think, is a salutary provision. It performs two functions...

Shri H.V. Kamath: On a point of clarification what about institutions and schools run by a community or a minority for its own pupils — not a school where all communities are mixed but a school run by the community for its own pupils?


The Hon'ble Dr. B.R. Ambedkar: If my friend, Mr. Kamath will read the other article he will see that once an institution, whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to all communities. That provision he has not read.”


138. He reaffirmed the freedom of the State to give or not to give aid to these schools when directly referring to draft Article 23 which is the precursor of the present Articles 29 and 30 as follows (VII CAD 923):


“I think another thing which has to be borne in reading Article 23 is that it does not impose any obligation or burden upon the State. It does not say that, when for instance the Madras people come to Bombay, the Bombay Government shall be required by law to finance any project of giving education either in Tamil language or in Andhra language or any other language. There is no burden cast upon the State. The only limitation that is imposed by Article 23 is that if there is a cultural minority which wants to preserve its language, its script and its culture, the State shall not by law impose upon it any other culture which may be either local or otherwise.” And, went on to observe that once an institution was receiving aid, "it must abide by the rigor of Article 29(2) in the matter of admission of students in the college" and "as already held by me, St. Stephen's College and Allahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian community as they are getting grant­in­aid and as such I do not consider it necessary to labour any more on the question of deciding as to what percentage can be considered as reasonable.” (emphasis supplied) The Court held that the choice of institution does not mean that the minorities could establish educational institution for the benefit of their own community people. In Re The Kerala Education Bill (supra), it was considered and observed that the minorities cannot establish educational institution only for the benefit of their community. Every educational institution, irrespective of community to which it belongs, is a 'melting pot' in our national life and that there should be mixing up of students of different communities in all educational institutions.


The intake for the community cannot exceed 50% of the annual admission, which is to be provided to other than the minority community. The admission should be made purely on the basis of merit.


27. In T.M.A. Pai Foundation (supra), decided by Bench of 11 Judges of the Court, on consideration of the rights under Article 30 of the Constitution of India, held thus:


“3. The hearing of these cases has had a chequered history.