IMPORTANT POINT
Right of the minorities to establish educational institutions which are of their choice and to administer them under Article 30(1) of the Constitution is absolute as per detailed reasons given by Syed Shah Mohammed Quadri, J. in this judgment in continuation of his earlier judgment rendered on 31.10.2002.

Headnote:(i) Constitution of India-Articles 19, 26, 29 and 30-Eleven questions referred to Bench of 11 Judges-Quadri J. concurring with majority except in regard to answers to questions 5(b), 8, 10 and 11-Detailed reasons for agreeing on those aspects with Ruma Pal, J. and disagreeing with majority as well as Variava and Ashok Bhan, JJ. are given in this judgment.
       Held : On October 31, 2002, while recording my answers to the eleven questions referred to the Bench of eleven learned Judges of this Court, I noted in a separate judgment, concurring with the majority except in regard to answers to question Nos. 5 (b), 8, 10 and 11, that I would give my reasons later for agreeing on those aspects with the opinion of our learned sister Ruma Pal, J. and dissenting with the majority opinion as well as the opinion of learned brother Variava, J., with whom learned brother Bhan, J. agreed. Here follow the reasons. (Para 1)
       (ii) Constitution of India-Articles 30(1) and (2)-Right of minorities to establish educational institutions which are their choice and to administer them-Interpretation and their inter action.
       Held : Having extracted sub-clause (g) of clause (1) and clause (6) of Article 19, Article 26 and Article 30, I had pointed out that a comparison of these provisions would show, whereas the rights conferred in Article 19(1)(g) and Article 26(a) were made subject to the discipline of Articles 19(6) and 26 respectively, that no such limitations were to be found in Article 30 of the Constitution and held, no such limitation could be read in Article 30(1) by any process of interpretation, therefore, in that the right conferred under the last mentioned provision would be absolute. (Para 17)
       I have expressed the opinion that the right conferred under Article 30(1) is absolute as no such limitations as are placed on rights conferred under Articles 19, 25 and 26, are to be found in Article 30(1); this is, however, not to deny the power to the State to frame regulations in the interest of minority educational institutions with regard to excellence of standard of education and check mal-administration. (Para 20)
       For all these reasons, I am, with great respect, unable to subscribe to the view in the majority judgment, "any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf." (Para 28)
       The above discussion leads to the conclusion that the limitations incorporated in Articles 19, 25 and 26 cannot be read into Article 30. What Article 30 predicates is institutional autonomy on the educational institutions established and administered in exercise of the right conferred thereunder, which cannot be interfered with by the State except to the extent of framing reasonable regulations in the interest of excellence of education and to prevent mal-administration. (Para 32)
       (iii) Constitution of India-Article 29(2) and 30(1)-Protection of interest of minorities-Whether on grant of aid by State, Article 29(2) controls Article 30(1)? (No)-Principles of equality and secularism whether affected?
       Held : In the light of the above discussion on the principle of generalia specialibus non derogant, I have no hesitation in concluding that the general right of the students under Article 29(2) of the Constitution available in respect of all educational institution in general does not prevail over the special right conferred on the minority educational institutions established and administered under Article 30(1) and receiving aid by virtue of Article 30(2) of the Constitution. (Para 43)
       On the institutions deciding to take aid from the State, the right of minority students to seek admission in such institutions cannot be affected. (Para 44)
       Therefore, it appears to me that on grant of aid by the State, Article 29(2) does not control Article 30(1). (Para 45)
       Having pondered over this aspect, I have unhesitatingly come to the conclusion that by serving their own linguistic minorities and throwing their institution open to the majority groups only on fulfillment of the need of minorities in a State, is not in violation of the scheme of Article 29(2) and Article 30 of the Constitution. I am, therefore, convinced that by not applying Article 29(2) of the Constitution to minority educational institutions based on religion or language, the principle of equality or secularism will not in any way be violated. (Para 58)
       It is for this and the other reasons mentioned above, in my respectful view, fixing a percentage for intake of minority students in minority educational institutions would impinge upon the right under Article 30 as it would amount to cutting down that right. The best way to ensure compliance with Article 29(2) as well as Article 30(1) is to consider individual cases where denial of admission of a non-minority student by a minority educational institution is alleged to be in violation of Article 29(2) and provide appropriate relief. (Para 64)
       For all these reasons, in my view, to create inroads into the constitutional protection granted to minority educational institutions by forcing students of dominant groups of the choice of the State or agency of the State for admission in such institutions in preference to the choice of minority educational institutions will amount to a clear violation of the right specifically guaranteed under Article 30(1) of the Constitution and will turn the fundamental right into a promise of unreality which will be impermissible. Right of minorities to admit students of non-minority of their choice in their educational institutions set up under Article 30 is one thing but thrusting students of non-minority on minority educational institutions, whatever may be the percentage, irrespective of and prejudicial to the need of the minority in such institution, is entirely another. It is the former and not the latter course of action will be in conformity with the scheme of clause (2) of Article 29 and clauses (1) and (2) of Article 30 of the Constitution. (Para 67)

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

The right of minorities to establish and administer educational institutions of their choice, as protected under Article 30(1) of the Constitution, is considered absolute. This right includes the freedom to choose the type of education, manage the institutions, select teachers, admit students of their choice, and use their properties for their educational purposes (!) (!) .
The right conferred under Article 30(1) is not subject to reasonable restrictions or regulations unless such regulations are aimed at ensuring excellence in education and preventing mal-administration. Regulations must be reasonable, aimed at improving the quality of education, and not in the interest of outside agencies or contrary to the institution’s character (!) (!) .
The rights under Article 30(1) are fundamentally distinct from rights under Articles 19, 25, and 26, which may be subject to limitations. No limitations or restrictions are explicitly provided in Article 30(1), and such restrictions cannot be read into it through interpretation (!) (!) .
The right to establish and administer educational institutions is also protected under the broader context of the right to equality and non-discrimination, but this does not extend to restrictions that would undermine the autonomy of minority institutions or their ability to admit students of their community of choice (!) (!) .
The right of minorities to admit students of their choice, especially in aided institutions, remains protected even when aid is received from the State. The grant of aid does not alter the character of the institution or the minority’s right to select students of their community, and Article 29(2) does not override this right (!) (!) .
Regulations imposed by the State for recognition, aid, or affiliation should aim at maintaining standards of excellence and proper administration without infringing on the core rights of the minority institutions. Such regulations should be reasonable and conducive to the educational purpose, not in the interest of outside entities or the public at large in a manner that destroys the minority character (!) (!) .
The interaction between Article 29(2) and Article 30 indicates that the right of minorities under Article 30(1) to establish and administer institutions is a special right that generally prevails over the individual rights of students under Article 29(2). This includes the right of minorities to admit students of their community without interference, even when aid is involved (!) (!) .
The constitutional protections for minority institutions are rooted in their historical and constitutional context, emphasizing their autonomy and the importance of their character being preserved against undue restrictions or regulations, especially when aid is involved (!) (!) .
The concept of 'public interest' or 'national interest' cannot be used to justify restrictions that would undermine the fundamental rights of minority institutions or their autonomy. Regulations must be aligned with the purpose of promoting educational excellence and administrative integrity without compromising the core rights protected under Article 30 (!) (!) .
The interpretation of constitutional provisions should be based on their plain language, historical background, and purpose, rather than extrinsic debates or legislative history, to preserve the integrity of constitutional rights and principles (!) (!) .

These points collectively underscore the primacy and absolute nature of the rights conferred upon minorities under Article 30(1), along with the limited scope of permissible regulations that aim at maintaining standards without infringing on the institutional autonomy and character of minority educational institutions.

JUDGMENT

Syed Shah Mohammed Quadri, J.-On October 31, 2002, while recording my answers to the eleven questions referred to the Bench of eleven learned Judges of this Court, I noted in a separate judgment, concurring with the majority except in regard to answers to question Nos. 5 (b), 8, 10 and 11, that I would give my reasons later for agreeing on those aspects with the opinion of our learned sister Ruma Pal, J. and dissenting with the majority opinion as well as the opinion of learned brother Variava, J., with whom learned brother Bhan, J. agreed. Here follow the reasons.

2. The difference of opinion mainly relates to the true interpretation of clause (2) of Article 29 and clauses (1) and (2) of Article 30 of the Constitution and their interaction.

3. Article 30 is a much discussed provision in Courts. It has been the subject matter of consideration by various High Courts as well as by this Court. I have already quoted clauses (1) and (2) of Article 30 and clause (1) of Article 29 in the said judgment. To appreciate various rival contentions, first I shall examine the extent of the right conferred by clauses (1) and (2) of Article 30. It is a common ground that all minorities, whether based on religion or language, are bestowed the right to establish and to administer educational institutions of their choice in clause (1) of Article 30. The following aspects of the right conferred therein on the minorities need to be noticed: (1) to establish educational institutions; (2) which are of their choice and (3) to administer them.

4. The choice of educational institutions may vary from religious instruction to temporal education or a combination of both. Having regard to the width of Entry 25 of the Concurrent List*, the choice of educational institutions may be understood to include places for imparting education of their choice and at all levels - primary, secondary, university, vocational and technical, medical, etc.

5. The expression of their choice includes not only the choice of the institution to be established and administered by the minorities, like institution for elementary, primary, secondary, university, vocational and technical and medical education, but also the choice of the students who have to be imparted education in such institutions. [See : The State of Bombay vs. Bombay Education Society and Ors. (1955 (1) SCR 568); In Re: The Kerala Education Bill, 1957, (1959 SCR 995); D.A.V. College, Jullunder etc. vs. The State of Punjab and Ors. (AIR 1971 SC 1737) and The Ahmedabad St. Xaviers College Society & Anr. etc. vs. State of Gujarat & Anr.(1975 (1) SCR 173).

6. The expression to establish means to set up on permanent basis. The expression to administer means to manage or to attend to the running of the affairs. A lucid connotation of this expression was given by Ray, CJ., in St. Xavier s case (supra) as under:

"The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution."

7. In none of the subsequent decisions of this Court, this exposition was departed from.

8. The Kerala Education Bill (supra) is the first important case in which the right of the minorities (based on religion or language) under Article 29 and Article 30 of the Constitution was exhaustively considered by this Court in its advisory o

Click Here to Read the rest of this document

2002 Supreme(SC) 1153

Cases Referred (25)