T.M.A. Pai Foundation v State of Karnataka (Supreme Court, 2002) — eleven judges on minority institutions

It is the governing authority on Article 30. Islamic Academy and Inamdar are commentaries on it, and Article 15(5) was Parliament's response to it. An examiner expects the answers to the eleven questions, or at least the ones on the unit, admissions, aid and fees.

Doubts about St. Stephen's College v University of Delhi (1992), and the inclusion of education in the Concurrent List by the Forty-second Amendment, led to the reference of a batch of petitions about minority and private educational institutions to a Bench of eleven judges. Kirpal C.J. delivered the majority judgment on 31 October 2002, framing eleven questions and answering those that the Bench needed to decide.

Q.1 Who is a minority, and by what unit? "Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganisation of the State in India has been on linguistic lines, therefore, for the purpose of determining the minority the unit will be the State and note 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.3(b) Professional education. "Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30."

Q.4 Admissions. For unaided minority schools and undergraduate colleges, admission "cannot be regulated by the concerned State or University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards." "The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions." For aided institutions: "A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens rights under Article 29(2) are not infringed." The State notifies the percentage.

Q.5(a) Procedure. "A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit."

Q.5(b) Aid. The authority giving aid to professional institutions may prescribe conditions of admission by merit, "coupled with the reservation policy of the state qua non-minority students", through a common entrance test or otherwise, and may "provide that consideration should be shown to the weaker sections of the society."

Q.5(c) Administration, staff and fees. In unaided minority institutions "the regulatory measure of control should be minimal"; conditions of recognition and affiliation must be complied with, but in day-to-day management, including the appointment of staff, "the management should have the freedom and there should not be any external controlling agency", subject to minimum qualifications the State may prescribe. "Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee."

Q.8 St. Stephen's. "The basic ratio laid down by this Court in the St. Stephen's College case is correct" but "rigid percentage cannot be stipulated."

Q.9 Unni Krishnan. The scheme framed in Unni Krishnan, "except where it holds that primary education is fundamental right, is unconstitutional. However, the principle that the should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering."

Q.10 and 11 Non-minorities and "education". "The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, to minorities specifically under Article 30." "Education" means education at all levels, including professional education.

Questions 2, 3(a), 6 and 7, on sects within a religion, the indicia of a minority institution and minorities across State lines, were left to a regular Bench.

Minority status under Article 30 is judged State-wise; the right to establish and administer institutions "of their choice" includes professional institutions and the right to admit students by the institution's own fair, transparent and merit-based procedure; the right is not absolute, and regulation for standards, recognition and affiliation is permitted; an aided minority institution keeps its character but must admit a reasonable extent of non-minority students; unaided institutions fix their own fees but may not charge capitation fees; and non-minorities have the same right under Articles 19(1)(g) and 26.