The constitution of India provides that the minority communities are entitled to establish educational institutions of their choice. This right of minorities includes establishment of institutions of academic and professional programmes.
It is a known fact that India has the third largest academic network in the world after US and China. Every country has its own system of academic standardisation. The Indian education system has strict parameters for the academic administration. The academic institutions are required to maintain the standards in admission of students and the execution of academic programmes. The standards in admission include the passing of qualifying examination with a prescribed percentage or division and securing the rank in the entrance test conducted by the government agencies or the universities. Standardisation of academic programmes include the required period of attendance of students and number of teaching days, assessment of students, medium of instructions, and prescription of fee for the programmes among other things. But the management of minority educational institutions feel that such conditions are interference in their constitutional rights of establishment and administration of educational institutions. When the situation slips beyond conciliation and satisfaction of the parties concerned the matters reach the court. This article attempts to discuss the judgements of the Supreme Court of India in respect of admission of students and medium of instruction in minority educational institutions.
Students Admissions
St. Stephen’s college v. University of Delhi[1] came up before the Supreme Court in the year 1992 for judgement wherein it was held that minority aided educational institutions may preserve 50 per cent seats for their community candidates and are entitled to give them preference in admission as it is necessary to maintain the minority character of institutions.
In Satimbla Sharma v. St. Pauls Senior Secondary School[2] the Supreme Court held that unaided private minority school over which the government has no administrative control because of their autonomy under Article 30(1) of the Constitution are not “State” within the meaning of Article 12 of the Constitution. Hence, they are not subject to public law obligation of State under Article 14 and Article 39(d).
Common Admission Tests
The Supreme Court in Modern Dental College and Research Centre v. State of Madhya Pradesh[3] again held that private unaided minority institutions have right to devise a rational manner of selecting and admitting students. However, certain degree of state control is required since State has the duty to ensure that high standards of education are maintained in all professional institutions.
In the famous case of T.M.A. Pai Foundation v. State of Karnataka[4] the Supreme Court held that an aided minority educational institution would be entitled to have the right of admission of students belonging to the minority group. The reservation policy of the government cannot be imposed on aided or unaided minority educational institutions and also to the unaided non-minority educational institutions.
A Seven Judge Bench of the Supreme Court in the case of P.A. Inamdar v. State of Maharashtra[5] discussed the entire gamut of Law in relation to minority educational institution and noticed that the right conferred by Article 30 was more in the nature of protection for minorities. It protects minority institution from regulatory legislations framed under Article 19 (6), but still they were not immune from regulatory control. The Supreme Court was basically concerned with admission of the students to different institutions wherein it observed that even within the scope of Article 30(1) there was a need for imposing reasonable restrictions even on the minority institution, and such direction would not vitiate and hurt the minority status.
The Supreme Court of India in the case of Christian Medical College Vellore Association v. Union of India[6] observed that Article 30 is in consonance with other parts of the Constitution and the regulatory measures of the government agencies do not impinge the rights of the educational institutions including the institutions managed by the minority communities. Conduct of Common Admission Tests for admission to various academic programmes does not violate the rights of educational institutions including the minority educational institutions. The Supreme Court observed thus:
“The rights of religious minorities under Article 30 of the Constitution also has been clarified to be not in conflict with other parts of the Constitution as balancing the rights is constitutional intendment in the national interest.
The regulatory measures under the Act and the Regulation cannot be said to be averse to the interest of such institutions, and such reasonable measures can be carved out. Additionally, these regulatory measures do not impinge upon the rights of institutions guaranteed under Articles 14, 19(1)(g), 25 and 30 of the Constitution.
The Constitution provides a limitation on the power of the State to interfere with life, liberty and rights however, the concept of limited government cannot be extended to a level when it defeats national interest. The regulatory framework created by the Act/ Dentist Act is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights under Articles 19(1)(g) and 30 of the Constitution.
The uniform entrance examination cannot be said to be unreasonable regulatory framework. Considering the terms and conditions for affiliation and recognition for professional medical and such other professional courses are binding, and no relaxation can be permitted in the conditions.
The rights under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to the State to regulate the course of study, qualifications for ensuring educational standards and imposing reasonable restrictions in the national and public interest.”
Admission Fee and other Fees
In Unni Krishnan v. State of A.P.[7] it was held by the Supreme Court that the minority educational institutions may charge such fee which is required for the betterment and growth of the institution but they should not be an element of profiteering in fixing the fee. But the question arises who should audit the reasonability of the fee and the element of profiteering. Many of the minority institutions took advantage of this judgement and the minority students were subjected to exploitation. The meritorious students could not pursue their education because they could not pay the exorbitant, arbitrary and unregulated fee charged by the minority institutions. This was a case of exploitation of minorities at the hands of minorities. But in the case of Islamic Academy of education v. State of Karnataka[8] the Supreme Court directed to constitute a separate committee in each state to be headed by a retired judge of the high court, to examine and recommend the fee structure of the minority educational institutions.
Again, the issue of fee charged by the minority educational institutions came up before the Supreme Court in Cochin University of Science and Technology v. Thomas Joan[9] wherein it was held that minority educational institution must be left to its own devices in the matter of fixation of fees. Profiteering or capitation fee is not permissible but some amount of surplus fund is permissible. If the institution follows broad principles, it is not required to explain minutely the details of its receipt and expenses. Again, the judiciary tilted towards the management of minority educational institutions but this is not in favour of the larger interest of the minority students or the community in general. Such judgements are prone to be misused by the management of Minority education institutions. Now the question arises who shall audit and determine the permissible limit of surplus fund.
Medium of Instruction
The Supreme Court in State of Bombay v. Bombay Educational Society[10] held that minorities have the right to impart instructions to the children of such community in their own language.
The Supreme Court in D. A. V. College v. State of Punjab[11] observed that the right provided under Article 30(1) to establish and administer educational institution of its choice includes the right to have a choice of medium of instruction. However, the University can prescribe qualification for the academic staff but actual selection of teachers must remain in the hands of minority educational institution.
In July 2013 the case of State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools,[12] was referred to a larger bench of the Supreme Court. A five judge bench of the Supreme Court on 6th May 2014 held that the State Government cannot force the linguistic minorities to choose their mother tongue only as the medium of instruction. The Court made the following observation:
“We have already held that a linguistic minority under Article 30(1) of the Constitution has the right to choose the medium of instruction in which education will be imparted in the primary stages of the school which it has established. Article 350A therefore cannot be interpreted to empower the State to compel a linguistic minority to choose its mother tongue only as a medium of instruction in a primary school established by it in violation of this fundamental right under Article 30(1). We accordingly hold that State has no power under Article 350A of the Constitution to compel the linguistic minorities to choose their mother tongue only as a medium of instruction in primary schools.
In view of our answers to the questions referred to us, we dismiss Civil Appeal Nos.5166-5190 of 2013, 5191-5199 of 2013, the Civil Appeal arising out of S.L.P. (C) No.32858 of 2013 and Writ Petition (C) No.290 of 2009.”
RTE Act 2009 Not Applicable to Institutions of Minorities
The Supreme Court in Society for Un-Aided Private Schools of Rajasthan v. Union of India[13] held that the Right of Children to Free and Compulsory Education Act, 2009 is not applicable to unaided minority schools. The Right of Children to Free and Compulsory Education Act, 2009 particularly Sections 12(1)(c) and 18(3) infringe the fundamental freedom guaranteed to unaided minority schools under Article 30(1).
A five judges bench of the Supreme Court in Pramati Educational and Cultural Trust v. Union of India[14], considered the issue of whether the Right of Children to Free and Compulsory Education Act, 2009 is not applicable to institutions established and managed by the minority communities and held that:
“We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashoka Kumar Thakur v. Union of India (supra) that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct. Instead, we hold that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting clause (5) of Article 15 of the Constitution is valid.” (Para 29)
In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed.”
Conclusion
Educational institutions are temples of learning. The standard of any educational institution would flourish because of the academic efficacy of its teachers and students. If best students are admitted in the institution on merit and qualified meritorious teachers are appointed the institution would become the epitome of academic excellence. If relaxation is sought in admission of students and appoint of teachers the institution would be held up in mediocrity. Such excellence would be possible if the minority communities learn to make use of their constitutional rights judiciously and administer their institutions honestly in admission of minority students and appoint of qualified teachers.
[1] St. Stephen’s college v. University of Delhi, AIR 1992 SC 1630.
[2] Satimbla Sharma v. St. Pauls Senior Secondary School, (2011) 13 SCC 760.
[3] Modern Dental College and Research Centre v. State of Madhya Pradesh, (2009) 7 SCC 751.
[4] T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355.
[5] P.A. Inamdar v. State of Maharashtra, 2003 (2) Suppl. SCR 474 = (2003) 6 SCC 697.
[6] Christian Medical College Vellore Association v. Union of India, 2020 SCC Online SC 423.
[7] Unni Krishnan v. State of A.P., (1993) 1 SCC 645.
[8] Islamic Academy of education v. State of Karnataka, AIR 2003 SC 3724.
[9] Cochin University of Science and Technology v. Thomas Joan, (2008) 8 SCC 82.
[10] State of Bombay v. Bombay Educational Society, AIR 1954 SC 561.
[11] D. A. V. College v. State of Punjab, AIR 1971 SC 1731.
[12] State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools, 2013 SCC Online SC 581.
[13] Society for Un-Aided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1.
[14] Para 29 and 47, Pramati Educational and Cultural Trust v. Union of India, 2014 8 SCC 1.
This article has been authored by Dr. P.S. Munawar Hussain, Joint Registrar at Maulana Azad National Urdu University, Hyderabad. He was assisted by Ms. Anjali Mehrotra, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.