The Hindu : Aided minority institutions subject to regulations

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Friday, Nov 01, 2002

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Aided minority institutions subject to regulations

By J. Venkatesan

NEW DELHI Oct. 31. In a significant ruling, the Supreme Court today re-defined the rights of `minorities' to establish and run educational institutions of their choice. It held that while unaided minority institutions would have unfettered rights, aided institutions could be subject to minimal regulatory measures by the state.

An 11-judge Constitution Bench, headed by the Chief Justice, B.N. Kirpal, in an unanimous verdict on the 11 questions framed by the Court held that the words "of their choice" in Article 30 (1) "indicates that even professional educational institutions would be covered by Article 30". On the question "who constitutes a minority", the Bench said, "The linguistic and religious minorities have to be considered on the basis of States and the population therein as the States were reorganised on the basis of language."

The main judgment of the Bench was written by Mr. Justice Kirpal. The Bench included Justice V.N. Khare, Justice G.B. Pattanaik, Justice S. Rajendra Babu, Justice S.S.M. Quadri, Justice Ruma Pal, Justice S.N. Variava, Justice K.G. Balakrishnan, Justice P. Venkatarama Reddi, Justice Ashok Bhan and Justice Arijit Pasayat.

Four other judgments giving different interpretations were written by Mr. Justice Khare, Mr. Justice Quadri, Ms. Justice Pal and Mr. Justice Bhan but they were in agreement with the broad conclusions.

While Article 30 (1) provides that "all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice", Article 29 (2) says "no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them".

On the contentious issue that the majority community also should have similar rights, the Bench held that "all citizens have a right to establish and administer educational institutions under Article 19 (1) (g) and 26, but this right is subject to the provisions of Articles 19 (6), viz. reasonable restrictions and 26 (a), viz. to establish and maintain institutions for religious and charitable purposes". It declined to answer the following questions — "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 religion are in the majority in the State?"

Explaining the extent of state control, the Bench said admission of students to unaided minority educational institutions (UMEI), where the scope for merit-based selection was practically nil, could not be regulated by the State Government or university, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. However, it said, this right was subject to the condition that "admission to the unaided educational institution was on a transparent basis and merit was adequately taken care of".

On aided institutions, the Bench made it clear that "a minority institution does not cease to be so, the moment grant-in-aid is received. An aided minority educational institution would be entitled to have the right of admission of students belonging to the minority group. At the same time, it 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, citizens' rights under Article 29 (2) are not infringed".

The Bench empowered the State Governments to notify the percentage of non-minority students to be admitted; it would vary according to the types of institutions, the courses of education and other factors such as educational needs. Observance of inter se merit amongst the minority group could also be ensured.

In the case of aided professional institutions, the Bench said it could be stipulated that passing of the common entrance test held by the state agency was necessary to seek admission. As regards non-minority students who were eligible to seek admission for the remaining seats, admission should normally be on the basis of a common entrance test.

On the rights of minorities to have their procedure of admission, the Bench said, "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 educational colleges should be on the basis of merit."

Further, "the procedure adopted or selection made should not tantamount to maladministration. Even an UMEI ought not to ignore the merit of the students for admission while exercising its right to admit students to the colleges, as in that event, the institutions will fail to achieve excellence".

The Bench placed on record its appreciation of the Attorney General, Soli Sorabjee, for the assistance rendered by him.

Highlights

All citizens have right to establish and administer educational institutions.

The right to administer MEI not absolute.

State can apply regulations to unaided MEIs to achieve educational excellence.

Aided MEIs should admit certain percentage of non-minority students.

Percentage of non-minority students to be admitted to an aided MEI to be decided by the State or university.

Fees to be charged by unaided MEI cannot be regulated but no institution can charge capitation fee.

State can prescribe minimum qualification for teachers and principal in an unaided MEI.

Tribunal headed by District Judge should be constituted for redressal of grievance of employees of MEI.

State can provide the manner of admission in case of an aided MEI to ensure that it is done on the basis of merit.

Merit could be determined through common entrance test.

Unaided MEI could have their own procedure for admission but the same had to be fair and transparent. — PTI

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