V.K. Bali, CJ.

The Kerala Education Bill, 1957 contained many provisions imposing considerable State control over the management of Educational institutions in the State of Kerala, aided or recognised. The provisions which affected the aided institutions were much more stringent than those which would apply only to recognised institutions. The width of power of control sought to be assumed by the State appeared to the President of India to be calculated to raise doubts as to the constitutional validity of some of the provisions of the Bill as an infringement of some of the fundamental rights guaranteed to the minority communities by the Constitution. The President under Article 143(1) of the Constitution of India sought opinion of the Supreme Court on questions of law of public importance that had far reaching consequences. The Supreme Court in Re. Kerala Education Bill, 1957, AIR 1958 SC 956, for the first time dealt with the right of minority community to establish and maintain educational institutions and other related educational matters. Ever since the decision of the Supreme Court in Re. Kerala Education Bill case till date, the same very and other questions on education have engaged the High Courts and the Supreme Court in a marathon litigation spanned over a period of almost six decades. The leading five case decided by the Supreme Court are Ahamedabad St. Xavier’s College Society v. State of Gujarat, 1974 (1) SCC 717, St. Stephen’s College v. University of Delhi (1992) 1 SCC 558; Unnikrishnan v. State of A.P. (1993) 1 SCC 645, T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 and P.A. inamder v. State of Maharashtra, (2005) 6 SCC 527, (hereinafter referred to as St. Xavier’s case, St. Stephen’s case, Unnikrishnan’s case, T.M.A. Paid Foundation case and Inamdar’s case respectively).

2. The second ever largest Bench consisting eleven Judges was constituted culminating into the decision in T.M.A. Pai Foundation When the judgment rendered by the Supreme Court in St. Stephen was doubted. The Supreme Court in T.M.A. Pai Foundation framed eleven questions to be answered by it, some of which were answered and some left to be decided by the regular Bench. Even though one of the ever largest bench was constituted, the aftermath of the decision in T.M.A. Pai Foundation was not encouraging. The Bench consisting of 11 Honourable Judges gave five opinions, the majority decision was delivered by the then Chief Justice; the four Honourable Judges delivered three separate opinions partly dissenting from majority view. The interpretation of the judgment of the Supreme Court in T.M.A. Paid Foundation almost became a game to be played by the State Governments and also the educational institutions, who would interpret the majority opinion in their own way. This lead to flooding the courts at all levels with multi faceted and multi dimensional litigations. The chaos that resulted because of the rival parties interpreting the judgment of the Supreme Court in their own way paved way for constitution of yet another Bench of five Judges in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, (hereinafter referred to as Islamic Academy of Education case) wherein as well two opinions were expressed, one by a majority of four Honourable Judges, delivered by the then Chief Justice, whereas the other by one Honourable Judge, who delivered a separate judgment. Despite the judgment in Islamic Academy of Education, it was accepted both by the Government and by the privately managed aided or unaided institutions that the position in law was still not clear. There were still unsettled issues and there was still no clarity in the decision of eleven Judges in T.M.A. Pai Foundation, thus resulting into constitution of seven Judges bench in P.A. Inamdar’s case. Indeed by this decision, some of the issues have been settled whereas, concededly, some still need to be settled and the cases including such unsettled points