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This article is written by Prateek Mudgal, Faculty of Law, Aligarh Muslim University. The article deals with various issues that surround the minority institutions and their regulations. The article deals with the judgement given by the 11-judges bench in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors and the clarifications given in the judgement of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors. 

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One of the most controversially contentious issues of India is topics related to the minorities. Interestingly the term minority is very vague, and the constitution has been used only twice in the constitution. It has been used in Article 29 and Article 30 of the Constitution, but what the term ‘minority’ actually means is not pondered upon. With the same terminology is connected to various issues of national importance, like reservation which is a very debatable issue in itself. Apart from issues related to reservation, there are other issues which are related to the minority educational institutions.

One of the most important judgements in the same light was delivered on 12th August 2005, by a bench of 7 judges in the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors (Appeal (civil) 5041 of 2005). The judgement was unanimous and discussed the issue (inter alia) of reservation policy in the unaided minority and non-minority institutions. The judgement was given to clear the mist of doubts arising from the previous judgement of the Supreme court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors (Writ Petition (civil) 317 of 1993). Therefore to understand the judgement and issues surrounding in P.A. Inamdar & Ors. vs. State of Maharashtra & Ors, it is important to analyse the related cases also.

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T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors

This is one of the most important cases which have discussed the right to education, under Article 21, and issues that surround minority educational institutions. To understand the case, it is important to understand the circumstances that led to this petition. Education is one of the most important factors of national prosperity, therefore, it is obvious for governments to spend a considerable amount of budget on the same. In the same light, the Post-Independence India envisioned proper education facilities. The education policy of 1986, firstly mentioned and recognised the private institutions in helping India achieve its goal. Back then, India was not very powerful economically. Insufficiency of State funds to meet the needs of a growing nation was not concealed and the reliability of private institutions became undeniable.

Background (Mohini Jain and Unnikrishnan)

The state, therefore, had to interfere with the commercialisation of the educational institutions. It is evident from the case of Mohini Jain vs the State of Karnataka, that the state had to interfere with the autonomy of a private institution. The main question before the court in Mohini Jain vs the State of Karnataka was regarding the availability of Right to education (as a fundamental right) under Article 21. The provision for free and compulsory education was already present under Article 45 of the Constitution. Another question was regarding the capitation fee charged by the Private institutions on admission seats ( for students not admitted on merit basis). The court observed in this case, that though the constitution doesn’t, explicitly, mentions the Right to Education as a fundamental right but through Directive Principles and Preamble of the Constitution it becomes clear that the state is expected to provide education for its citizens and the state was directed to have right to education depending on its economic capacity. 

It was reasoned by the court that for the Right to Dignity and Life, the right to education should be a constitutional right because only education can protect dignity which is in turn very necessary to protect Right to Life. It was further reasoned that in various cases it has been seen that Life means a lot more than simple body and life, various necessities have been involved in the right to life. Apart from the above reason, the court explicitly mentioned that the Right to Dignity can only hold good when people are educated enough to understand the intricacies involved. Therefore in this judgment, the court opined that the Right to Education shall be a fundamental right to provide one with a dignified life, which in turn protects Right to Life.

The court also held that access to education shall be the same for rich and poor, therefore in the above case if the government wishes to discharge the duties entitled to it though private institutions then an agency-relationship arises and thus making private institutions to follow the same rules and must not charge extra from students who are not allotted government seats.

But if we go by this reasoning and interfere with the private institutes to this extent then private institutions will have to be closed. To remove this absurdity, the issue was decided in the Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors and it was held in this case that right to education exists only till the age of 14 years. The court emphasized the involvement of Private institutions (particularly in higher education). The court decided that though the private institutions are considerably autonomous the state has the authority to regulate these institutions to prevent commercialization of education. Capitation fee was denied but an adequate fee to be charged was permitted.

Question of Minority Institution

 In T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors, the court contemplated on various important issues and through the judgement sought to answer those questions.

Question regarding the fundamental right and provisions of setting up an educational institution

The court while answering this question referred to three Articles of the Indian Constitution, namely Article 19, 26 and 30. Firstly, Article 19(1) of the Indian Constitution allows the citizens of India to take any occupation, trade or business ( subject to the restrictions posed by Article 19(6). Secondly, Article 26 of the Indian constitution gives the right to religious denominations to maintain as well as establish institutions for religious purposes. Therefore Article 26 of the Indian Constitution provides for the establishment of the educational institutions by religious denominations. Thirdly and most Importantly Article 30(1) of the Indian constitution allows the religious and linguistic minorities to set-up their educational institutions. The court analysing Article 19(1)(g) considered education to be a charitable activity without any profit motive and therefore clubbed the setting up of educational institutions under ‘occupation’.

Question regarding the consideration of setting-up educational institutions where the profit-making element is absent

The court here considered that setting up of an educational institution will be regarded as an occupation, irrespective of the fact there is an element of profit generation or not it is because whenever a person engages in such institution there is a mission of life etched to the very act. Therefore setting up educational institutions come under ‘occupation’.

Questioning regarding the consideration of Unni Krishnan Case

The court held that private aided/unaided institutions are entitled to charge higher fees than the government institutions. At the same time, it gave the state authority to fix the maximum amount that can be charged to prevent commercialisation of the education system. The court also supported that the government has the power to frame regulatory policies for the aided private institution and unaided private institutions looking for affiliation or recognition. It was also decided that 50% of the seats would be free seats and students will be selected based on merit. The other 50% of the seats will be paid seats and determination would be on a similar basis as that of free seat criteria. The court criticising the judgement of Unni Krishnan case upheld the autonomy of Private-unaided institutions.

It was rightly contended by the petitioners that such a decision would only benefit the rich urban class which is not even selected meritoriously. Therefore it will prove to be a loss to the educational institutions. In the case of Sidhajbhai Sabbai v. the State of Maharashtra (AIR1963 SC 540: (1963) 3 SCR 837), the supreme court ruled out that for the greater good of the nation and to improve the efficiency of education system the legislative as well as executive action can be imposed on the minority institutions.

The extent of government regulations on private institutions

The extent to which the government can regulate the institutions varies with different institutions.

  • Private unaided non-minority educational

The court ruled out that in the case of such institutions the institution is at liberty of procedure of selection of students into the institution and selection can be according to their choice. But the court also demands that the procedure of selection should be objective and rational. The court ruled out that the private institution may constitute its own governing body. The work of the governing body will be to look after any al-administration and for ensuring proper educational standards. According to the court, profiteering from private institutions is forbidden. Though a reasonable surplus would be considered appropriate and the same surplus can be regulated accordingly. Rigid-Fee structure and compulsory nomination of staff would be considered as an unnecessary restriction.

  • Private unaided professional

The autonomy of private unaided professional institutions was held to be intact. But regarding the admission of students in the institution the main power lies with the institution, but some power will remain with the management regarding the same. The execution of the same can be through the reservation of a few seats for the discretion of management. The right to employ the teachers will also be given to the management. The management will employ teachers based on the qualifications prescribed by the State.

Question regarding the determination of religious or linguistic minority 

The question regarding minorities is about the territorial unit to be considered while considering a community minority. The same question came in the Kerala education bill case wherein the court had to decide the territorial issue. The issue was what should be considered the territorial unit, should it be the entire nation or a particular state forming the part of the Union. Therefore referring to the judgement given in Kerala education bill, the court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors decided that when the question of minority arises it will be dealt with concerning the entire population of the state. 

These were the main questions that were answered in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors. One of the leading academicians commenting on the judgement of T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors said that the judgement is only a partial response to the problem and does not suffice to the challenges posed by Liberalisation, Privatisation and Globalisation (LPG). Apart from that the academician also noted that the general guidelines that can be formulated from the judgement of are very broad and leave much space for interpretation to different courts apart from this the lack of clarity leaves much space for judicial creativity. Not only this a series of questions remain unanswered. After this, the courts were filled with writ petitions and many cases arose. Therefore to tackle the issue a 7-judge bench was set-up to look after the matter and the bench answered the lingering questions in P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.

P.A. Inamdar Case: answering questions

11 questions contended before the bench and bench answered those questions. Some of the questions were answered by the bench, and some of those 11 were unanswered to be dealt by a regular bench. Their analysis has been given, hereafter. 

Question regarding the meaning of the term ‘minorities’ mentioned in Article 30

Answer: The bench answered the question considering the minorities to be religious and linguistic minorities. The bench also said that since the states are formed on linguistic lines, therefore the question of the minority will also be state-wise. Therefore while considering the question of minorities, the state should be the unit.

The extent to which professional education can be considered as coming under Article 30 (minority rights)

Answer: It is clear that Article 30(1) gives minorities the right to establish educational institutions of their choice. This term of their choice explicitly means that professional institutions are covered as well under Article 30(1).

Regulations by the state government or university to which the institute is affiliated regarding the admission of students to the minority institution (aided/unaided) 

Answer: In the case of unaided minority educational institutions which involve schools and colleges and where the scope of selection based on merit is nil, the state government or university cannot regulate the admission process. Though the government or the university may employ eligibility criteria to improve the standard of education. In the judgement, the bench emphasized that state government and university shall not interfere with this right of minority unaided educational institutions when the process of admission is transparent and proper care regarding merit has been taken. The power of administration is not absolute and therefore the government or university may introduce regulatory measures to ensure excellence and good educational standards, particularly in professional institutions. 

A minority institution that receives grants does not cease to be an institution with minority status. Therefore such aided institutions also have the right to admit the student to protect the minorities right under Article 30(1). At the same time such institutions are required to admit a reasonable (varies from institution to institution) and a considerable number of students, to protect the citizens’ right provided under Article 29(1). In aided institutions, it can also be asked to admit those students who pass the common entrance test conducted by the State.

Minorities right regarding admission and selection of students in minority institutions

Answer: the method and procedure of admission and selection of students can be decided by the minority institution. The procedure and method should be transparent and merit-based for professional and higher education. Not only the aided institutions but the unaided institutions should also select students based on merit when higher education and professional institutions are concerned.

Effect on minorities right when the minority institution gets a state grant. Effect on procedure and method of admission

Answer: When authorities provide grant and aid to the institution the authorities can formulate a set of rules and regulations that are to be followed by the institutions. The conditions and regulations will contain important information regarding the basis of selection of students and the reservation policy for students who don’t belong to the particular ( of institution) minority. The merit-based selection can be through a common entrance test which can be conducted by the state or the university or by the institutions itself, the decisive power remains in the hand of state and university. In such institutes, the government and university may ask the institution to show consideration to the weaker sections of the society.

Interference of statutory provisions with the right of administration of minorities

Answer: In case of unaided minority institutions, there should not be excessive external control on the administration and in day-to-day management tasks like hiring teachers, staff, etc. the management should be given freedom without external control. Though there are certain regulatory measures and rules related to affiliation with the university and such rules should be complied with. Management has to evolve a rational method for the selection of teaching staff based on merit and also to take disciplinary action. Regarding the redressal of grievances by employees of these aided and unaided institutions, appropriate tribunals should be constituted. For aided institutions, proper service conditions can be formulated regarding teaching staff and employees, but such regulations should not interfere with the overall administration power of management over the staff. Fees charged by the unaided institution cannot be regulated. There should not be any capitation fee.

If the judgement and schemes framed in Unni Krishnan require reconsideration

Answer: The scheme framed by the judgement in the Unni Krishnan case is unconstitutional, except that right to education is a fundamental right. The condition that capitation fee should not be charged is correct and there should not be profiteering is also correct. Reasonable surplus, that is surplus to augment the institutes and provide better facilities should not be considered to be profiteering.

Rights of non-minorities to establish and run educational institutions under Article 21 and Article 29(1) (read with Article 14 and Article 15(1)) and the meaning of ‘education’ and ‘educational institutions according to the constitution

Answer: The expression ‘education’ in the constitution included education from all levels. Education includes education from primary level to postgraduate level along with professional education. Education Institutes are those institutions which impart the above-mentioned education.

The right to establish an educational institution is given to all citizens under Article 19(1)(g) and Article 26. The right to establish an educational institution is specifically provided to minorities under Article 30. The right, given to citizens under Article 19(1)(g) and Article 26 is subject to Article 19(6) and Article 26(a). Minority institutions will have the right to admit students from minority groups as per the procedure mentioned in the answers above.

The judgement apart from giving answers to the various unanswered questions gave profound insights to the different policies which are closely associated with the minority institution. Therefore it is necessary to summarise the relevant points mentioned in the judgement.

Reservation policy

The state government cannot impose the reservation system and quota system on minority or non-minority unaided institutions. Therefore the state cannot insist on implementing the reservation policy of the state to provide students with a quota to facilitate their admission on the low percentage of marks. Due to insufficient funds if the state fails to provide the students with advanced facilities and private institutions provide advanced facilities even in that case the state cannot impose on private institutions to admit less meritorious students. Though on the discretion of management not more than 15% of seats may be reserved for NRIs. such seats which are reserved for NRIs should be utilized by bonafide NRIs only. Also while reserving the seats for NRIs the condition of merit should not be compromised. The funds collected using admission of NRIs may be utilised for the upliftment of weaker sections of the society.

Admission policy

The unaided minority and non-minority institutions are technically very free and quite distant from the government regulations before undergraduate level. But government regulations play an important role for all professional, technical institutes, institutes that provide undergraduate and postgraduate degrees. Such courses cannot be taken by institutes if they are not affiliated or recognised by a competent authority. Competent authority includes University, Board, Central Government etc. Wherever interference of government is required in an unaided minority institution to improve the standard of education imparted and to promote the national interest, the government can interfere and regulate the same. The admission procedure to the unaided minority institution as well aided minority institutions should be based on merit and transparency. The State can introduce regulations and guidelines regarding the conduction of a common entrance test which will help in transparency and will also reduce the risk of mal-administration.

Fee structure

Holding the judgement given in Unni Krishnan case it was considered that every institute has the liberty to formulate its fee structure. The only restriction is regarding the capitation fee and profiteering. It has to be noted that a reasonable surplus cannot be considered as profiteering. The fee structure has to be justifiable and there are certain determinants to determine the reasonability of the charged fees. These determiners are as follows:

  • Availability of facilities and infrastructure 
  • The investments made by the Institute
  • Salaries of teaching as well as non-teaching staff
  • Plans regarding the improvement of the institution (facilities and infrastructure)
  • Augmentation of institutions by multiple institutes

In the judgement delivered in the case Islamic Academy Of Education And Ors. vs the State Of Karnataka And Others (Writ Petition (civil) 350 of 1993), S.B Sinha noted that reasonable surplus roughly amounts to 6%-15%. In the judgement given in P.A. Inamdar & Ors. vs. State of Maharashtra & Ors, the bench concurring with the former judgement in Islamic Academy case held that reasonable surplus can be up to 15%.

Committees dealing with admission and fees

In the judgement of the Islamic academy case, setting up of two committees for regulatory measures was suggested. These regulatory measures to curb economic exploitation was to help the student community at large. These regulatory measures would help both minority and non-minority students. Following the same pattern, in the judgement of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors same thing was considered. The unfair practice of extortion of money based on candidates capacity to pay can be curbed when proper measures regarding admission process and fees have been taken from the initial stage.

Other restrictions that favour the student community at large can also be imposed on non-minority unaided institutions. The criteria for professional education should be merit and eligible students should be admitted to the institution on terms that are non-exploitative in nature. The committees discussed are ad-hoc committees and would be arranged Temporarily by exercising the power conferred to the courts under Article 142 of the constitution. These committees will look after the matter until the state steps in. these committees, unlike the permanent committee mentioned in Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors case, are temporary.


Minority rights have always been an issue in India. The Constitution mentions minorities only twice. The framers of the constitution had envisioned a country that provided opportunities to various sections of society. The underprivileged sections need more care and resources for their upliftment. Apart from this, a strong nation rests on a strong foundation, this foundation is necessarily built on the shoulders of youth. To bolster the skills and morality of the foundation it is necessary to provide our youth with proper education facilities. India has moved a long way starting from Mohini Jain case where a little inclination towards considering Right to education as a fundamental right can be seen. Then in the Unni Krishnan case, it became well-established that right to education is a fundamental right that led to a legislation and Article 21A was inserted. Similarly, the issues regarding minority institutions that came in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors and Islamic academy case were dealt with in P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.



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