TMI Blog2002 (10) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 279, 35, 181, 373, 487 and 23 of 1999, 561 of 2000, 6 and 132 of 2002, Civil Appeal Nos. 1236- 1241 and 2392 of 1977, 687 of 1976, 3179, 3180, 3181, 3182, 1521-56, 3042-91 of 1979, 2929-31, 1464 of 1980, 2271 2443-46 of 1981, 4020, 290 and 10766 of 1983, 5042 and 5043 of 1989, 6147 and 5381 of 1990, 71, 72 and 73 of 1991, 1890-91, 2414 and 2625 of 1992, 4695-4746, 4754-4866 of 1993, 5543-5544 of 1994, 8098-8100 and 11321 of 1995, 4654-4658 of 1997, 608, 3543 and 3584-3585 of 1998, 5053-5054 of 2000, 5647, 5648- 5649, 5650, 5651, 5652, 5653-5654, 5655, 5656 of 2001 and 2334 of 2002, S.L. P. (C) Nos. 9950 and 9951 of 1979, 11526 and 863 of 1980, 12408 of 1985, 8844 of 1986, 12320 of 1987, 14437, 18061-62 of 1993, 904-05 and 11620 of 1994, 23421 of 1995, 4372 of 1996,. 10360 and 10664 of 1997, 1216, 9779-9786, 6472-6474 and 9793 of 1998, 5101, 4480 and 4486 of 2002 and T.C. (Civil) Nos. 26 of 1990, T.P. (Civil) Nos.1013-14 of 1993. S. N. Variava, J. 1. We have had the advantage of going through the Judgment of the learned Chief Justice of India, brother Justice Khare, brother Justice Quadri and sister Justice Ruma Pal. We are unable to agree with the views expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree with the conclusion of the learned Chief Justice that the scheme cannot be considered to be a reasonable restriction and requires re- consideration and that the regulations must be minimum. However we cannot lose sight of the ground realities in our country. The majority of our population come from the poorer section of our society. They cannot and will not be able to afford the fees which will now be fixed pursuant to the judgment. There must therefore be an attempt, not just on the part of the Government and the State, but also by the educational institutions to ensure that students from the poorer section of society get admission. One method would be by making available scholarships or free seats. If the educational institution is willing to provide free seats then the costs of such free seats could also be partly covered by the fees which are now to be fixed. There should be no harm in the rich subsidising the poor. 4. The learned Chief Justice has repeatedly emphasised that capitation fees cannot be charged and that there must be no profiteering. We clarify that the concerned authorities will always be entitled to prevent by enactment or by regulations the charging of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch schools. Similarly in an aided schools, State sometimes provides aid for some of the teachers only while denying the aid to other teachers. Sometimes the State does not provide aid for the non-teaching staff. The State could, when granting aid, provides for the age and qualifications for recruitment of a teacher, the age of retirement and even for the manner in which an enquiry has to be held by the institution. In other words there could be regulations which ensure that service conditions for teachers and staff receiving aid of the State and the teachers or the staff for which no aid is being provided are the same. Pre-requisite to attract good teachers is to have good service conditions. To bring about an uniformity in the service conditions State should be put at liberty to prescribe the same without intervening in the process of selection of the teachers or their removal, dismissal etc. We agree that there need not be either prior and subsequent approval from any functionaries of the State/University/Board (as the case may be) for disciplinary action, removal or dismissal. However principles of natural justice must be observed and as already provided, by the learned Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the conclusions of both the learned Chief Justice as well as Justice Khare that Article 29(2) applies to Article 30. However, we are unable to agree with the final reasoning that there must be a balancing between Articles 29(2) and 30(1). We, therefore, give our reasons for disagreeing with the final conclusion that there must be a balancing between Articles 29(2) and 8. We are conscious of the fact that the learned Chief Justice and Justice Khare have exhaustively dealt with the authorities. However in our view there is need to emphasise the same. We are here called upon to interpret Articles 29(2) and 30. Submissions have been made that in interpreting these Articles the historical background must be kept in mind and that a contextual approach should be taken. We must, therefore, a) look at the history which led to incorporation of these Articles. The intention of the framers will then disclose how the contextual approach must be based; b) apply the well settled principles of interpretation; and c) keep the doctrine of Stare Decisis in mind. 9. In the case of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], it has been held that in interpreting the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lways have their rights by having proper legislation do not pass a legislation prohibiting minorities to establish and administer educational institutions of their choice. xxx xxx xxx xxx xxx xxx Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality. xxx xxx xxx xxx xxx xxx The real reason embodied in Article 30(1) of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens. (emphasis supplied) 13. This was the basis on which minority rights were guaranteed. The rights were created so that minorities need have no apprehension that they would not be able, either in the religious or in the educational fields, to do what the politically powerful majority could do. In matters of education what the politically powerful majority could do was to establish and administer educational institutions of their choice at their own expense. Principles of equality required that the minorities be given the same rights. The protection/special right was to ensure that the minorities could also establish and administer educational institutions of their choice at their own expense. The demand for separatism and separate electorates was given up as principles of secularism and equality were considered more important. The principle of secularism and equality meant that State would not discriminate on grounds of religion, race, caste, language or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich a considerable proportion of citizens of other than the language of the unit are residents, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such citizens through the medium of their own language. Nothing in this clause shall be deemed to prevent the unit from making the teaching of the national language in the variant and script of the choice of the pupil obligatory in the schools. (9) No legislation providing State-aid for schools shall discriminate against schools under the management of minorities whether based on religion or language. Every monument of artistic or historic interest or place of natural interest throughout the Union is guaranteed immunity from spoliation, destruction, removal, disposal or export except under a law of the Union, and shall be preserved and maintained according to the law or the Union. This shows that the intention was to give to the minorities the right to form, control and administer, amongst others educational institutions, at their own expense. It is also to be noted that Article (9) is similar to what is now Article 30(2). As the educational institutions were to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lming majority of the members of the Advisory Committee. So far as the scheduled castes were concerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnesses so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities' rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as a historical fact which moulded its nature and character. Since the language of the Preamble was taken from the resolution itself the declaration in the Preamble that India would be a Sovereign Democratic Republic which would secure to all its citizens justice, liberty and equality was implemented in Parts III and IV and other provisions of Constitution. These formed not only the essential features of the Constitution but also the fundamental conditions upon and the basis on which the various groups and interests adopted the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in this respect. (2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission into State educational institutions, nor shall any religious instruction be compulsorily imposed on them. (3)(a). All minorities whether based on religion, community or language shall be free in any unit to establish and administer educational institutions of their choice. (b) The State shall not, while providing State aid to schools, discriminate against schools under the management of minorities whether based on religion, community or language. Thus under Clause 18(3)(a) minorities based on religion, community and language were to be free to establish and administer educational institutions. The Constituent Assembly Debates, of 30th August, 1947, indicate that it was understood and clear that the right to establish and administer educational institutions was to be at their own expense. During the Debate on 30th August, 1947, Mr. K.T.M. Ahmed Ibrahim Sahib Bahadur proposed an amendment in Clause 18(2). The suggested amendment read as follows: Provided that this clause does not apply to state Educational institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... told us what was the reason why he specifically excluded State-aided institutions from this clause. If he had explained it, probably the House would have been convinced. I hope that all the educationists and other members of this House will support my amendment. (emphasis supplied) Even though Mrs. Purnima Banerji is seeking to give further protection to students of minority community, her speech indicates the principle, accepted by all, that if an institute receives State aid it cannot discriminate or refuse admission to members of other communities. The reply of Mr. Munshi is as follows:- Mr. K. M. Munshi: Mr. President, Sir, the scope of this clause 18(2) is only restricted to this, that where the State has got an educational institution of its own, no minority shall be discriminated against. Now, this does recognise to some extent the principle that the State cannot own an institution from which a minority is excluded. As a matter of fact, this to some extent embodies the converse proposition over which discussion took place on clause 16, namely no minority shall be excluded from any school maintained by the State. That being so, it secures the purpose which members discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees of trust for some other purpose by a stroke of the pen? The idea seems to be that by placing these two lines in the constitution everything in this country has to be changed without even consulting the people or without even allowing the legislatures to consider it. I submit that looking into the present conditions it is much better that these things should be done by the normal process of educating the people rather than by putting in a Fundamental Right. This clause is intended to be restrictive that neither the Federation nor a unit shall maintain an institution from which minorities are excluded. If we achieve this, this will be a very great advance that we would have made and the House should be content with this much advance. Thus to be seen that Mr. Munshi echoed the sentiment so often expressed by Counsel before us i.e. that by securing a small amount of aid, the right to administer educational institutions cannot be given up. This was immediately answered as follows: Mr. Hussain Imam : I will not take more than two minutes of the time of the House. I think there is nothing wrong with the amendment which has been moved by Mrs. Banerji. She neither wants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Headmaster of any school would be under a compulsion to admit any specified number of boys belonging to any particular community. Take for instance an Islamia School. If 200 Hindu boys offer themselves for admission to that School, the Headmaster will be under no obligation to admit all of them. But the boys will not be debarred, from seeking admission to it simply because they happen to be Hindus. The Headmaster will lay down certain principles in order to determine which boys should be admitted. xxx xxx xxx Sir, we have decided not to allow separate representation in order to create a feeling of oneness throughout the country. We have even disallowed cumulative voting because, as Sardar Vallabhbhai Patel truly stated the other day, its acceptance would mean introduction by the backdoor of the dangerous principle of communal electorates which we threw out of the front door. So great being the importance that we attach to the development of a feeling of nationalism, is it not desirable and it is not necessary that our educational institutions which are maintained or aided by the State should not cater exclusively for boys belonging to any particular religion or communit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that may be conducted in such institution or in any premises attached thereto unless such person, or if such person is a minor, his guardian has given his consent thereto. (3) Nothing in this article shall prevent any community or denomination from providing religious instruction for pupils of that community or denomination in an educational institution outside its working hours. Cultural and educational rights 23. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script and culture of its own shall have the right to conserve the same. (2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the State. (3)(a) All minorities whether based on religion, community or language shall have the right to establish and administer educational institutions of their choice. (b) 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, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of their choice. Now, is it intended that the institutions referred to in the subsequent clause which minorities may establish and conduct and administer according to their own choice, is it intended that in these institutions the minorities would not be allowed to provide religious instruction? There may be institutions established by minorities, which insist on students' attendance at religious classes in those institutions and which are otherwise unobjectionable. There is no point about State aid, but I cannot certainly understand why the State should refuse recognition to those institutions established by minorities where they insist on compulsory attendance at religious classes. Such interference by the State I feel is unjustified and unnecessary. Besides, this conflicts with the next article to a certain extent. If minorities have the right to establish and administer educational institutions of their own choice, is it contended by the Honourable Dr. Ambedkar that the State will say You can have institutions, but you should not have religious instructions in them if you want our recognition'. Really it beats me how you can reconcile these two points of view in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. (emphasis supplied) 23. To be noted that in the draft Articles there is no clause which provides that if an institution, whether maintained by the community or not, gets a grant, it shall keep the school open to all communities. The next clause which Dr. Ambedkar referred to, was the proposed amendment moved by Pandit Thakur Dass Bhargava. As stated above this proposed amendment had already been circulated to all. It is clear that Dr. Ambedkar had already accepted the proposal of Pandit Thakur Dass Bharvava. 24. On 8th December, 1948, when Pandit Thakur Dass Bhargava moved his amendment, the debate read as follows: Pandit Thakur Das Bhargava: Sir, I beg to move. That for amendment No. 687 of the List of amendments, the following be substituted:- That for clause (2) of article 23, the following be substituted :- (2) No citizen shall be denied admission into any educational institution maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions which will be governed by this provision of law. Previously only the educational institutions maintained by the State were included. This amendment seeks to include such other institutions as are aided by State funds. There are a very large number of such institutions, and in future, by this amendment the rights of the minority have been broadened and the rights of the majority have been secured. So this is a very healthy amendment and it is a kind of nation-building amendment. Now, Sir, the word community is sought to be removed from this provision because community has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then ' community as such has no basis. So the word community is meaningless and the words substituted are race or caste . So this provision is so broadened that on the score of caste, race, language, or religion no discrimination can be allowed. My submission is that considering the matter from all the standpoints, this amendment is one which should be accepted unanimously by this House. (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to take State aid they must then abide by the Constitutional mandate of Article 29(2) and with principles of equality and secularism. 29. The same result follows if well settled principles of interpretation are applied. It is settled law that if the language of the provision, being considered, is plain and unambiguous the same must be given effect to, irrespective of the consequences that may result or arise. It is also settled law that while interpreting provisions of a Statute, if two interpretations are possible, one which leads to no conflict between the various provisions and another which leads to a conflict between the various provisions, then the interpretation which leads to no conflict must always be accepted. As already been seen, the intention of the framers of the Constitution is very clear. The framers unambiguously and unanimously intended that rights given under Article 30(1) could be fully enjoyed so long as the educational institutions were established and administered at their own costs and expense. Once State aid was taken, then principles of equality and secularism, on which our Constitution is based, were to prevail and admission could not be denied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equality and secularism to be more important than the rights under Article 30(1). Thus in Article 30(2) it was advisedly not provided that rights under Article 30(1) could not be restricted or abridged whilst granting aid. A plain reading of Article 30(2) shows that the framers of the Constitution envisaged that certain rights would get restricted and/or abridged when a minority educational institute chose to receive aid. It must also be noted that when property rights were deleted [by deletion of Article 19(1)(f)] the framers of the Constitution realised that rights under Article 30(1) would get restricted or abridged unless specifically protected. Thus Article 30(1A) was introduced. Article 30(1A), unlike Article 30(2), specifically provides the acquisition of property of a minority educational institute must be in a manner which does not restrict or abrogate the rights under Article 30(1). When the framers so intended they have specifically so provided. Significantly even after Judgments of this Court (set out hereafter) which laid down that Article 29(2) applied to Article 30(1), the framers have not amended Article 30 to provide to the contrary. 32. Even though a plain re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot get admission to such institutions. Such an interpretation would also lead to clash between Article 30 and Article 28(3). There may be a religious minority educational institute set up to teach their own religion. Such an institute may, if it is unaided, only admit students who are willing to say their prayers. Yet once aid is taken such an institution cannot compel any student to take part in religious instructions unless the student or his parent consents. If Article 30(1) were to be read in a manner which permits State aided minority educational institutions to admit students as per their choice, then they could refuse to admit students who do not agree to take part in religious instructions. The prohibition prescribed in Article 28(2) could then be rendered superfluous and/or nugatory. Apart from rendering Article 28(2) nugatory such an interpretation would set up a very dangerous trend. All minority educational institutions would then refuse to admit students who do not agree to take part in religious instructions. In all fairness to all the counsels appearing for minority educational institutions, it must be stated that not a single counsel argued that Article 28(2) wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linguistic, a special or privileged class of citizens. We should give to Article 30(1) a meaning which would further the basic and overriding principles of our Constitution viz. equality and secularism. The interpretation must not be one which would create a further divide between citizen and citizen. 36. It has also been submitted that a minority educational institute would have been established only for the purpose of giving education to students of that particular religious or linguistic community. It has been submitted that if Article 29(2) were to apply then the very basis of establishing such an educational institution would disappear once State aid is taken. Whilst considering such a submission one must keep in mind that the desire to establish educational or other institutions for the benefit of students of their own community would be there not only in minority communities. Such a desire would be there in all citizens and communities, whether majority or minority. If the majority communities, whether religious or linguistic, can establish and administer educational institutions for their own community at their own costs why should the position be different for minori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of other communities will take admission in such an educational institution. If the educational institution is giving general secular education, then the minority character of that institution does not get affected by having a majority of students from other communities. Even though the majority of students may be from other communities the institution will still be under the management of the minority. Further if the educational institution is a school, then the management will, in spite of Article 29(2), still be able to take a sizable number of students from their own community into the school. Article 29(2) precludes reservations on grounds of religion, race, caste or language. But it does not preclude giving of preference, if everything else is equal. Admission into schools generally are by interview. At this stage there is no common entrance test which determines merit. Undoubtedly children of the minority communities, contemplated by Article 30(1), would be as bright or capable as children of other communities. Thus whilst admitting at this stage preference can always be given to members of their own community so long as some students of other communities are also admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral secular laws of the country. 39. Thus looked at either from the historical point of view and/or the intention of the framers and/or from the contextual viewpoint and/or from principles of interpretation it is clear that Article 29(2) fully applies to Article 30. If a minority educational institute chooses to take State aid, it cannot then refuse to admit students on grounds of religion, race, case, language or any of them. 40. Now let us see whether the principles of stare decisis require us to take a different view. A large number of authorities have been cited and one has to consider these authorities. 41. The first case, which was decided as far back as on 9th April, 1951, was the case of The State of Madras v. Srimathi Champakam Dorairajan. It is reported in (1951) SCR 525. In this case the State of Madras was maintaining Engineering and Medical Colleges. In those colleges, for many years before the commencement of the Constitution, the seats used to be filled up in a proportion, set forth in what was called the Communal G.O. . The allocation of seats was as follows: Non-Brahmin (Hindus) 6 Backward Hindus 2 Brahmins 2 Harijans 2 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. It is argued that the petitioners are not denied admission only because they are Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmin are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom these reservations have been made. The classification in the Communal G. O. proceeds on the basis of the religion, race and caste. In our view, the classification made in the Communal G. O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit to a class where English is used as the medium of instruction, any pupil other than the pupil whose mother tongue was English. This was challenged in a Writ Petition under Article 226 in the High Court of Bombay. The Petition having been allowed, the State filed an Appeal to this Court. This Court held as follows: Assuming, however, that under the impugned order a section of citizens, other than Anglo-Indians and citizens of non-Asiatic descent, whose language is English, may also get admission, even then citizens, whose language is not English, are certainly debarred by the order from admission to a School where English is used as a medium of instruction in all the classes. Article 29(2) ex facie puts no limitation or qualification on the expression citizen . Therefore, the construction sought to be put upon clause 5 does not apparently help the learned Attorney-General, for even on that construction the order will contravene the provisions of article 29(2). The learned Attorney-General then falls back upon two contentions to avoid the applicability of article 29(2). In the first place he contends that article 29(2) does not confer any fundamental right on all c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(2), then there are several obvious answers to that argument. The language of article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of article 29(2) extends against the State or any body who denies the right conferred by it. Further article 15 protects all citizens against discrimination generally but article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been sought to be achieved. Obviously that is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School where the medium of instruction is English. Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil is not English. Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language. The same principle is implicit in the decision of this Court in The State of Madras v. Srimathi Champakam Dorairajan [(1951) SCR 525]. There also the object of the impugned communal G. O. was to advance the interest of educationally backward classes of citizens but, that object notwithstanding, this Court struck down the order as un- constitutional because the modus operandi to achieve that object was directly based only on one of the forbidden grounds specified in the article. In our opinion the impugned order offends against the fundamenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution in any particulars or to any extent? 46. Only question No. 2 is relevant for our purpose. Whilst answering question No. 2 this Court, inter alia, observed as follows: Re. Question 2: Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head Cultural and Educational Rights . The text and the marginal notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities. Under cl. (1) Art. 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Art. 30(1) which has hereinbefore been quoted in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular minority community. In our opinion, it is not possible to read this condition into Art. 30(1) of the Constitution. Thus even in this case it has been accepted and held that Article 29(2) applies to minority educational institutions established under Article 30. It has been held that merely because students of other communities are admitted, the institute does not lose its minority character. In this case it was also held that State can prescribe reasonable regulations. In this case regulations which provided for qualifications of teachers and which provided for State Public Service Commission to select teachers in aided schools were upheld. Thus even in this case it is accepted that Article 29(2) would govern Article 30(1). 48. In Rev. Sidhajbhai Sabhai v. State of Bombay reported in (1963) 3 SCR 837, the petitioners belonged to the United Church of Northern India. They maintained educational institutions primarily for the benefit of the Christian community. Admittedly these institutions did not receive State aid. Therefore, the question of Article 29(2) and its applicability to Article 30 did not arise. On the contrary (as is set out on page 840 of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Article 30(1). This argument was negatived by holding that merely because members of other communities were admitted into the institution did not mean the institution lost its minority character. This case thus shows that even if members of other community are admitted into the institution the institution would still remain a minority institution which is under the management of the minority. 50. In Rev. Bishop S. K. Patro v. State of Bihar reported in (1970) 1 SCR 172, an educational institute was started by a Christian with the help of funds received from London Missionary Society. The question was whether the institute was not entitled to protection of Article 30(1) merely because funds were obtained from United Kingdom and the management was carried on by some persons who may not have been born in India. This Court held that rights under Article 29 could only be claimed by Indian citizens, but Article 30 guarantees the rights of minority. It was held that the said Article does not refer to citizenship as the qualification for members of the minority. This case therefore does not deal with the question of the interplay between Articles 29(2) and 30(1). 51. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not complied with the affiliation was liable to be withdrawn. By clause 18 the staff initially appointed were to be approved by the Vice Chancellor and subsequent changes had to be reported to the University for the Vice- Chancellor's approval. And by Clause 18 non-government colleges were to comply with the requirements laid down in the ordinance governing service and conduct of teachers. It was held that Clause 2(1)(a) interfered with the right of the religious minority to administer their educational institutions, but that Clause 18 did not suffer from the same vice. It was held that ordinances prescribing regulations governing the conditions of service and conduct of teachers must be considered to be one enacted in the larger interest of the institution to ensure their efficiency and excellence. It was similarly held that sub- sections (2) and (3) of Section 4 do not offend any of the rights under Articles 29(1) and 30(1). It must be observed that, whilst dealing with the Articles 29 and 30, this Court observed as follows: It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a representative of the University nominated by the Vice-Chancellor. Section 33A(1)(b)(I) provided that in the case of recruitment of the Principal, a selection committee is required to be constituted consisting of, among others, a representatives of the University nominated by the Vice-Chancellor and (ii) in the case of selection of a member of the teaching staff of the College a selection committee consisting of the Principal and a representative of the university nominated by the Vice-Chancellor. Sub-section (3) of the Section stated that the provisions of sub-section (1) of section 33A shall be deemed to be a condition of affiliation of every college referred to in that sub-section. Section 39 provided that within the University area all post-graduate instruction, teaching and training shall be conducted by the University or by such affiliated College or institution and in such subjects as may be prescribed by statutes. Section 40(1) enacted that the Court of the University may determine that all instructions, teaching and training in courses of studies in respect of which the University is competent to hold examinations shall be conducted by the University and shall be impa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it had to admit students of all classes and creeds. The majority Judgment, therefore, did not deal with the question of interplay between Articles 29(2) and 30. Even though it did not deal with the interplay of Articles 29(2) and 30, it was clear that reasoning of the majority is based on the fact that the College did not deny admissions to the students of other communities. This is clearly indicated by the test which had been laid down by the majority. This test reads as follows: 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. (emphasis supplied) Thus it is held by the majority that the institute is to be made an effective vehicle of education not just for the minority community but also for other persons who resort to do. This indicates that the majority made the observations on the understanding that admissions were not restricted only to students of minority community once State aid was received. This aspect is clearly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions on the right in Art. 30(1). There are also certain implied limitations on this right. The right should be read subject to those implied limitations. (emphasis supplied) Thus even in this authority the principle that Article 29(2) applies to Article 30(1) has been recognised and upheld. This case also holds that reasonable restrictions can be placed on the rights under Article 30(1) subject to the test set out hereinabove. 56. In the case of Gandhi Faizeam College v. Agra University reported in (1975) 3 SCR 810 the minority college was affiliated to the University of Agra. It applied for permission to start teaching in certain courses of study. The University, as a condition of permitting the additional subjects, insisted that the Managing Committee must be re-constituted in line with Statute 14-A which provided that the principal of the College and senior-most staff member should be part of the Managing Committee. The Petitioners filed a Writ Petition in the High Court challenging the imposition of such a condition on the ground that it was violative of their rights under Article 30(1). The High Court dismissed the Writ Petition. Therefore the Petitioners came to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age and meaning are clear then Courts must give effect to it irrespective of the consequence. With the greatest of respect to the learned Judges concerned, once it was held that Article 29(2) applied to Article 30, there was no question of trying to balance rights or to seek a compromise. 58. Justice Kasliwal dissented from the majority view. It must be noted that in St. Stephen's case, in his minority judgment, he has held that Article 29(2) governs Article 30(1) and that if the minority educational institute chooses to take aid it must comply with the constitutional mandate of Article 29(2). The Judgment in St. Stephens case is of recent origin. It therefore cannot form the basis for applying the principles of Stare Decisis . 59. Thus, from any point of view i.e. historical or contextual or on principles of pure interpretation or on principles of stare decisis the only interpretation possible is that the rights under Article 30(1) are conferred on minorities to establish and administer educational institutions of their choice at their own cost. This right is a special right which is given by way of protection so that the majority, which is politically powerful, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of outsiders Article 29(2) would not be violated if the refusal is not made on the basis of the religion, race, caste, language or any of them. Of course, at the under-graduate and post-graduate stages merit would have to be the criteria. At these stages there are common entrance examinations by which inter se merit can be assessed. But even here, the minority educational institute can admit students of its own community on grounds like those set out in para 37 above. They could give some preference to students coming from their own schools. There could be interviews wherein not more than 15% marks can be allotted. Students of their community will be able to compete on merit also. All these would ensure that a sufficient number of students of their own community receive admissions. But the minority institute, once it receives State aid, cannot refuse to abide by the constitutional mandate of Article 29(2). It would be paradoxical to unsettle settled law at such a late stage. It would be paradoxical to hold that the rights under Article 30(1) are subject to municipal and other laws, but that they are not subject to the constitutional mandate under Article 29(2). It would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. What is meant by the expression religion in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority? A. This question need not be answered by this Bench, it will be dealt with by a regular Bench. Q3(b) To what extent can professional education be treated as a matter coming under minorities rights under Article 30? A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents in professional and higher educational colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to mal-administration. Even an unaided minority institution, ought not to ignore merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. Q5(b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? A. Further to what is stated in answer to question No. 4, it must be stated that whilst giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state. The merit may be determined either through a common entrance test conducted by the University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions - the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed. There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not restored to. The extent of regulations will not be the same for aided and un-aided institutions. Q6(a) Where can minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q6(b) Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis--vis such institution? A. This question need not be answered by this Bench; it will be dealt with by a regular Bench. Q.7. Whether the member of a linguis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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