T.M.A Pai Foundation & Ors vs. State of Karnataka
By Anusha Nagavarapu
Writ Petition No.350 of 1993 was filed by the Islamic Academy of Education and the connected petitions in this regard was placed before a 5 judge bench for determination, as to whether private educational institutions are entitled to their autonomy devoid of the governmental control, so as to impart free and quality education. The Bench, being of the opinion that Article 30 did not protect the minority institutions in this regard, the matter was placed before a 7 judge bench. The court directed for the same to be placed before an 11 judge bench in lieu of the 42nd Amendment to the Constitution wherein “education” was included in Entry 25 of List III of the Seventh Schedule. The contention of the Petitioners was that the control of the government was arbitrary in the sense that they are an autonomous institutions, entitled to their own methods in terms of fees, staff employment and the control of the Government in regard to the same would constitute an impediment to their fundamental rights. The Court held in this case that while it is true that government regulations cannot destroy the minority character of the institution, but the right assured under Article 30 is not so absolute so as to be above the law. Any regulation framed in the national interest therefore applies to all educational institutions, be it majority or minority. While the words of Article 30(1) remain unqualified, one cannot read them independently of morality, health and standards of education. The Court also held that be it aided, or unaided, the management must seek to employ rational procedures for selection of staff and discipline, and the State is well within its rights to prescribe minimum conditions for the same. The Court distinguished between unaided and aided institution, stating that in case of the former, minimum involvement of the State must be ensured, though condition of recognition/affiliation must be complied with. The court held that the scheme in Unni Krishnan’s case was illegal and constitutional and emphasized to a certain extent on the autonomy of private minority institutions, while keeping in mind the need for government control at the same time.
In 1948, a year after independence, the University Education Commission was set up under the leadership of Sarvepalli Radhakrishnana. The report enumerate ideas including autonomy, free inquiry and liberalisation of education. It emphasized a great deal on the distinction between ‘recognition’ and ‘state control’, owing to the scenario in Great Britain, wherein educational institutions were free of Government control. The New Education Policy of 1986 mentioned the role of private institutions and recognized the same, for the first time. The State funds being scanty for educational requirements, necessitated the need for the private sector to interfere to ensure higher education was imparted. The State requirements later on, only proved to be curtailments to the autonomy of private educational institutions. In Mohini Jain v. State of Karnataka, the court faced two issues: i. Whether there exists a right to education, and if so does charging a capitation fee violate the same, and second, whether the capitation fee violated Article 14 of the Constitution. The Court held that the State is under an obligation to provide education at all levels, and that charging a capitation fee was a denial of a right of education. The court stated that institutions set up with the permission of the control, as well as all others, should charge the same fee in the case where government seats are filled by charging an amount of Rs.2000.
In Unni Krishnan J.P v. State of Andhra Pradhesh, owing to the harsh pronouncement in Mohini Jain, sought to reconsider the same in lieu of the fact that all private educational institutions will have to close down if the decision were to be followed. The Court held in this case, that the right of education exists only to the Children upto the age of 14. The Court however placed an emphasis on private sector involvement in education, especially with respect to higher education. The court also said that regulatory controls of the government were to be followed and discouraged the commercialisation of education. An adequate fee was allowed to be charged, but not a capitation fee and admission of all groups on merit was emphasized.
It was after UnniKrishnan, that a 11 judge bench was formed to decide the matter in TMA Pai Foundation.
The court addressed five main issues with regard to the case, each of which shall be analysed in depth:
1. Whether there exists a fundamental right to set up educational institutions and if so, under which provision?
i. Purpose and intent behind the words ‘education’, ‘occupation’, ‘trade’ and ‘business’.
The court, with regard to this issue analysed the three relevant articles in this regard, i.e. firstly, Article 19(1)(g) which gives the right to all citizens to practice any profession or to carry on any occupation, trade or business; this right being subject to reasonable restrictions as per Article 19(6). Secondly, Article 26 which assures the right to every religious denomination to establish and maintain an institution for religious purposes- this including educational institutions, as well. Thirdly, Article 30(1) which states that every religious and linguistic minority has the right to establish and administer educational institutions of their choice.
The court examined the definitions of ‘profession’, ‘occupation’, ‘trade’ and business’ under Article 19(1)(g) , thereby holding that education is a charitable activity by nature, and lacks any profit motive that may be attached to it and then proceeded to club the same under the expression of ‘occupation’. The court then relied on a case so as to establish that the purpose of employing all four words in Article 19(1) (g) is to cover all avenues and modes through which a man earns his livelihood, so as to ensure that any activity taken on by a person to earn his livelihood is included within the ambit of Article 19(1)(g).
In analysing the landmark case of Unnikrishnan, the court rightly disagreed with the Court’s view on ‘education’. It was held in this case that education while falling under the category of occupation, it only does, provided no recognition or affiliation is sought from the university, on the basis that it’s a fundamental right. The court rightly pointed out that such a view would be erroneous in and counterproductive as the fundamental right to establish an educational institution cannot be misconstrued to be the same as that of seeking affiliation or recognition. A right to carry on business cannot be understood to mean the same as a right to carry on a business at a certain place.
ii. Whether an educational institution can be regarded as an occupation where it lacks a profit making element?
The court in this case accurately and clearly stated that in the situation where a large number of persons are employed as teachers of administrative staff and the notion involving imparting of education to students, regardless of the element of profit generation, the same must and should be regarded as an occupation, even if the same does not exist. The same is wholly owing to the fact that such activity has been undertaken as a means of livelihood or mission in life.
The court actively recognized the rights of religious denominations and sections thereof to establish educational institutions under Article 26(a), provided they do not fall under the special categories enumerated in Article 29(1) and Article 30(1).
2. Whether the decision of Unni Krishnan required reconsideration?
In the case of Unni Krishnan the Supreme Court held that the right to basic education is implied in the fundamental right to life, and interpreted the same in conjunction with the directive principles on education. In this case, certain private educational institutions challenged the constitutionality of the state laws regulating capitation fees charged by the institutions. The Court in this case held that private unaided /aided institutions recognized by the State are entitle to impose a higher fee than that of government institutions but the same is subject to the maximum limit fixed by the state, and held that commercialization of education was impermissible and “opposed to public policy”. The Court upheld the power of the government to frame rules and regulations in matter of admission and fees as well as recruitment in the case of private aided educational institutions, and formulated a scheme so as to impose it upon even those institutions seeking affiliation/recognition even if they were unaided. The scheme entailed that 50% of seats in the institution would be “free seats” and given on basis of merit on a common entrance exam and the remaining 50% would be paid seats and would be determined on the same basis as that of the free seat criteria. The scheme also stated that the fee will be subject to a ceiling as may be prescribed by the appropriate authority or court.
The Petitioners in this case rightly contended that the scheme uplifted the privileged rich urban families even though their seats weren’t attained meritoriously and the same resulted in losses for educational institutions. Besides this, the same cannot be said to be a ‘reasonable restriction’. The Court further upheld the autonomy of the autonomy of the educational institutions and held that private unaided ones cannot be deprived of these rights. The Court criticized the Unnikrishnan judgement and upheld the autonomy of the private institutions.
Perhaps a cursory glance can also be given to the case of Sidhrajbhai Sabbai v. State of Gujarat wherein the Supreme Court held that only such regulations may be imposed by legislative or executive action, which seek to retain its minority character, while also aiming to make the same an effective vehicle of education. This judgement is relevant in terms of regulations imposed upon private minority institutions as it emphasises the relevance of making the institution conducive to the interests of efficiency of instruction, discipline, health, sanitation, morality, etc. An important factor such as the efficiency of such an institution has been clearly overlooked in the case of Unnikrishnan and it can be said that the Court in this case has rightly upheld the contentions of the Petitioner’s in regard to the same. The autonomy of private institutions plays an essential role in the present scenario, owing to the lack of competence of Government institutions, and the same can thrive owing to its monopolist nature, which is severely lacking in the present scenario.
3. To what extent may government regulations be imposed upon private institutions?
For the purpose of determining this issue, institutions have been segregated under the following heads:
i. Private Unaided Non-Minority Educational Institutions
The court held that in this case, notwithstanding the right of the state to prescribe necessary qualifications, private unaided colleges still have the right to admit students of their choice, and with an “objective” and “rational” procedure of selection. They may provide freeships or scholarships to a small percentage of students belonging to weaker sections, if the same hasn’t been granted by the government. The Court also rationally explained a sensible fee structure, wherein the need to produce funds for the betterment of the educational institution is considered, and the autonomy of the institute was given precedence in this case, as well, wherein the private institution may constitute its own governing body as well. The Court emphasised from a regulatory standpoint, that the same can be done so, only to prevent mal-administration and to ensure proper academic standards. The Court even went on to say that while profiteering is forbidden, a reasonable revenue surplus would be appropriate, and regulations for the same may be imposed. A rigid free structure, compulsory nomination of staff, etc would be deemed as unreasonable restrictions. Special emphasis was also placed on merit.
ii. Private unaided professional institutions
Unaided professional institutions were held to be entitled to their autonomy, and merit still plays a vital role in that regard. The court held in this regard, that while main autonomy rests with the institute to admit students, some power would remain with the management with regard to the same. This may be done by reserving some seats for the Management’s discretion, while the rest may be filled on the basis of counselling by the state agency. The Management would reserve the right to employ teachers subject to qualifications prescribed by the State.
iii. Private aided professional institutions (non-minority)
It may be said that with regard to aided institutions, the Court adopted a bit of contradictory approach, in this case. The Court places heavy emphasis on Government control over employment of teachers and staff, as well as imposes certain fetters on the autonomy of aided institutions in terms of fee in view of the interests of the institution. The Court states thus:
“Once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution.”
The court, however also held that:
“... At the same time it has to be snured that even an aided institution does not become a government owned and controlled institution.”
A viewing of these two statements would entail that the two statements are contradictory. By placing the power in the hands of the Government to control the affairs of an aided institution, one can presumably conclude that its autonomy would be hampered through and through. And if not, clear guidelines or tests for protecting the autonomy of these aided institutions must be enumerated which the Court seems to have overlooked.
4. What is to be the unit to determine the existence of a religious or linguistic minority in relation to Article 30?
The court in this particular issue relied upon the Kerala Education Bill case, wherein the question came up as to whether the minority community was to be determined on the basis of the entire population of India, or on the basis of the State forming a part of the Union. The court observed in this case that as the Kerala Education bill “extends to the whole of the State of Kerala”, the minority must be determined on the basis of the entire population of that State. The court rightly held in this case that in respect of a state law, the determining factor to take into consideration for the purposes of establishing a unit, can only be a state, be it a religious or linguistic community. While this point was not conclusively decided, the emphasis on the aspect that it has to be determined with respect to the ‘state’ alone, was placed. State is this the conclusive parameter for the same.
5. To what extent can the rights of aided institutions be regulated?
The court, while dealing with this issue stated that while Article 30(1) provides for minorities to be able to establish and administer educational institutions, the same is not devoid of curtailments. Article 26 was also dealt with, and a difference was pointed out that while Article 30 deals with the rights of religious as well as linguistic communities, Article 26 deals strictly with those of religious denominations, only. While Article 25 and 26 places fetters on the rights of the minority institutions, those of which are subject to public order, Article 30(1) is not subject to public order. It also does not make the rights subject to rules, or regulations of any sort. But the court interpreted that while this is a fundamental right in the hands of the minorities, it could not be exercised so as to be against public morality or health, or exercised in such a manner so as to promote racial bigotry. The court, while referring to a number of decisions laid down in this case that while the grant of aid is not a constitutional imperative, and Article 30(2) only protects minority institutions from being discriminated against while seeking grants. This means that the State cannot deny the grants on a discriminatory basis. The Court also stated that the receipt of the aid is not what constitutes the institution to be a minority one, and the receipt of aid cannot be a reason for any alteration to the character of the educational institution. Such grant therefore, cannot prescribe conditional attachments that dilute the status of the minority institution. Reasonable conditions to do with proper utilization of the aid and manner in which the same are utilized may be imposed, and it cannot be said that no conditions at all may be imposed while giving aid to a minority institution.
 (1992) 3 SCC 666
 (1993) 1 SCC 645
 The State of Bombay v. R.M.D Chamarbaugwala
 Sodan Singh v. New Delhi Municipal Committee and Ors
The court relied on Sodan’s case so as to establish this.
 Article 41.
 AIR1963 SC 540: (1963) 3 SCR 837
 Mahendra Pal Singh, V N Shukla’s Constitution of India, 2016, p.285