The lawsuit gives a critical analysis of the TMA Pai v/s State Of
AIR 2003 SC 355.
This case is a landmark judgement that has given answers to plenty of questions
regarding the minorities rights and government regulations in the administration
of educational institutions. TMA PAI foundation v State of Karnataka
light on how article 29(2) apply to article 30(1).
On behalf of the private minority institutions, it was submitted that on the
correct interpretation of the various provision of the constitution under
Article 29 and 30 the minority institutions have the rights to establish and
administer educational institutions of their choice. The use "of their choice"
article 30(1)shows that the religious and linguistic minorities could establish
and administer any type of educational institution.
It was argued that such an educational is invariably established primarily for
the benefit of the religious and linguistic minority and should be open to such
institutions to admit students of their choice article 30(2)was meant to ensure
that minority institutions would not be denied aid on the ground that they were
managed by minority institutions.
The facts of the case were that the 1st petitioner is Dr T M A Pai foundation
which is a Trust registered under the trust act. Second petition is Manipal
institute technology which is an educational institution owned and administered
by the first petitioner trust. Third petitioner to the 6th petitioner are the
trustees. The Academy of general education was founded by Dr TMA PAI became the
Registrar for life according to paragraph 29 of the memorandum of association.
Other large institutions were established by the academy.
The governor of the state put a law into decree to the ordinance of the
Karnataka educational institutions (Prohibition of capitation fee) ordinance
1984 asking the validity of the Karnataka and the state government dated 19 July
1984 fixing the intake of the second petitioner. The plea of the petitioner is
that the Act is violative of article 30 of the constitution which confer
fundamental rights on the linguistic and religious minorities to establish and
administer educational institute of their choice.
The plea of the state was put forward in the statement of objection. The 2nd
petitioner institution was not established by a minority for the benefit of
Konkani speaking people. As stated by the petitioners the college was
established by the Manipal engineering college trust in 1957which was created by
Academy of General education. As mentioned by the 2nd petitioner college and the
administration thereof along with other institutions stand vested in the 1st
As far as the validity of the act is concerned, practice of collecting
capitation fee was destructive of higher values and amounted to
commercialization of education and exploitation of the situation. Therefore the
provisions of the act are not violative of article 30,14 and 29 of the
Some questions were asked regarding the misunderstanding between the
petitioners and the respondent:
- Whether the petitioner are entitled to the protection of Article 30 of
- If the answer to question 1 is yes then whether all or partly of the
provisions of the Act are unconstitutional being inconsistent with Article
An educational institution is established for the purpose of imparting
education of the type made available by the institution. Different courses of
study are usually taught by teachers who have to be recruited as per
qualifications that may be prescribed. It is no secret that better working
conditions will attract better teachers.
More amenities will ensure that better students seek admission to that
institution. One cannot lose sight of the fact that providing good amenities to
the students in the form of competent teaching faculty and other infrastructure
costs money. It has, therefore, to be left to the institution, if it chooses not
to seek any aid from the government, to determine the scale of fee that it can
charge from the students.
In as much as the occupation of education is, in a sense, regarded as
charitable, the government can provide regulations that will ensure excellence
in education, while forbidding the charging of capitation fee and profiteering
by the institution. To put it differently, in the establishment of an
educational institution, the object should not be to make a profit, inasmuch as
education is essentially charitable in nature. There can, however, be a
reasonable revenue surplus, which may be generated by the educational
institution for the purpose of development of education and expansion of the
It is a fundamental right to set up educational institution as:
Article19(1)(g) gives the right to all the citizens to practice any profession
or to carry on any occupation, trade or business; this right is subject to
restrictions that may be placed under Article19(6),
Article 30(1)in no uncertain terms, gives the right to the religious and
linguistic minorities to establish and administer educational institutions of
their choice institution for religious purposes, which would include an
educational institution .
In the case it was discussed, though education do not come under the definition.
Article 30(1) uses the term 'linguistic' or ;religious' minorities. The word
'or' means that a minority may either be linguistic or religious and it does not
have both- are religious minority as well as linguistic minority. It is
sufficient of it is one or the other or both.
A linguistic minority of Art.30(1) is one which has a separate spoken language.
It is not necessary that language should also have a separate script. India has
a number of languages will constitute minority to claim protection of Art.
The constitution uses the term 'minority' without defining it. In the The Kerala
Education Bill the Supreme Court opined that while it is easy to say that
minority means a community which is numerically less than 50 per cent, the
important question is 50 per cent of what? Should it be of the entire population
of India, or of a State , or a part therefore?. It is possible that a community
may be in majority in a State.
India is a land of diversity-of different castes, peoples, communities,
languages,religions and culture. Although the citizens enjoy complete political
freedom, a vast part of the multitude is illiterate and lives below the poverty
lines. The state, with its limited resources, was unable to fully develop the
genius of people, very often their impersonal education that is imparted by the
state was devoid of adequate material lcontent
In that scenario, private educational institution established by educationists,
philanthropists and religious and linguistic minorities, which provide quality
education was imparted with unproductive load on their back in the form of
governmental control, by way of rules and regulations, has thwarted the progress
of quality education.
A number of petitions were filled by management of minority and non-minority
educational institutes. Their contention that the government must get off their
back,and that they should be allowed to provide quality education uninterrupted
byunnecessary rules and regulations, laid down by the bureaucracy for its own
The private educational institutions, both aided and unaided, established by
minorities and non-minorities, in their desire to break free of the unnecessary
shackles put on their functioning as modern educational institutions and seeking
toimpart quality education for the benefit of the community for whom they were
established, and others, have filed the writ petitions and appeals asserting
their right to establish and administer educational institutions of their choice
unhampered by yrules and regulations that unnecessarily impinge upon their
On behalf of all these institutions, the petitioners submitted that the
Constitution provides a fundamental right to establish and administer
educational institutions. With egard to non-minorities, the right was stated to
be contained in Article 19(1) the Supreme Court said that fundamental right
given to all minorities under Article 30(1) to establish and administer
educational institutions of their choice does not militate against the claim of
the State to insist that in granting aid the state may not prescribe reasonable
regulations to ensure the excellence of the institutions.
Accordingly, the court in this case upheld certain conditions designed to give
protection and security to the ill-paid teachers who were rendering service to
the Nation and to protect backward classes as permissible restrictions which the
State can impose on minorities as a condition for granting aid to their
In St Xaviers College v/s State of Gujarat
The facts of the case are, a Jesus Society of Ahmedabad, was running the St
Xavier College.,certain amendments in Gujarat University act, 1949, violated
their right under Article 30.The court held that the provisions of the Gujarat
University act, 1949, abriged the right of the minority to administer the
educational institution of their choice and, therefore, did not apply to
The Court further held that , autonomy in administration means the right to
administer effectively the affairs of the institutions. The choice in the
personnel of management is a part of the administration. It also includes right
to choose teachers of its choice.
The expression "education" in the Articles of the Constitution means and
includes education at all levels from the primary school level up to the
post-graduate level. It includes professional education. The expression
"educational institutions" means institutions that impart education, where
"education" is as understood here in above.
The right to establish and administer educational institutions is guaranteed
under the Constitution to all citizens under Article 19(1)(g) and 26, and to
minorities specifically under Article 30. All citizens have a right to establish
and administer educational institutions under Articles 19(1)(g) and 26, but this
right will be subject to the provisions of Articles 19(6) and 26(a). However,
minority institutions will have a right to admit students belonging to the
minority group, in the manner as discussed in this judgment.
Article 29 and 30 plays a major role in interpreting the extent of the right of
minorities to establish and administer educational institution. In TMA Pai
decision specifically dealt with the issue whether in order to determine the
existence of a religious or linguistic minority in relation to article 30, the
state or the country as a whole is to be taken as unit.
The position with regard to the religious minority is similar since both
religious and linguistic or religious minorities within a meaning of Art 39
would be one and the same either in relation to a state or central legislation.
Article 30(1) uses the terms linguistic or religious minorities. This means that
it may be both. Article 30 is a special right conferred on the religious and
linguistic minorities because of their numerical handicap.
Written By: Sibonginkosi Kositina
of Lovely Professional university.