critical analysis of the case – T.M.A.Pai foundation v. State of karnataka, AIR 2003 SC 355 – through the view of minority of educational rights

OTHER RELEVANT DETAILS OF THIS CASE

Number of paragraphs; 450

Bench; 11 judge bench

B.N. Kirpal, Chief Justice

G.B. Pattanaik

S. Rajendrababu

K.G. Balakrishnan

Arjit Pasayat

U. N. Khare

Ruma Paul

Ashok Bhan

Syed Shah Mohammed Quadri

P. Venkattarama Reddy

S.N.Variappa

Cases referred

1)      Ahmadabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389 7 JUDGE BENCH

2)       In Re The Kerala Education Bill, [1959]1 SCR 995. 7JUDGE BENCH

3)      St. Stephens College v. University of Delhi,(1992) 1 SCC 558  5 JUDGE BENCH

4)      T.M.A PAI Foundation v. State of Karnataka, AIR 1994 SC 13 5 JUDGE BENCH

5) D.C.Wadhwa .v. State of Bihar AIR 1987 SC 579 5 JUDGE BENCH

6)      P.A. Inamdar & Otrs v. State of Maharashtra AIR 2005 SC 3226 7 JUDGE BENCH

7)      Unni Krishnan J.P & Otrs v. State of Andhra Pradesh AIR 1993 SC 2178 5 JUDGE BENCH

8)      D.A.V. College v. State of Punjab, AIR 1971 SC 1737 5 JUDGE BENCH

9)      State of Madras Vs Smt. Champakam Dorairajan,AIR 1951 SC 226. 7 JUDGE BENCH.

10)  Bal Patil and Anr v. Union Of India, (2005) 6 SCC 690

Minority

Under the title “Monkey Salvation for a Fish” Anthony de mello narrates the following;-

“What on earth are you doing?” said I to the monkey

When I saw him lift a fish out of the water and place it on the branch of a tree

“I am saving the fish from drowning” replied the monkey.

There is a danger that even the most benevolent majorities have this monkey’s salvation over minorities. This is exemplified in the oft repeated invitation to the minorities to dive into the national mainstream. The Supreme Court of India has saved itself from a monkey. The constitution bench of 11 Judges in the matter of T.M.A. Pai Foundation and others v. State of Karnataka, 2003 had a relook into the interpretation of the constitutional rights of the religious and linguistic minorities to establish and administer educational institutions of their choice. Apart from interpreting the content and extent of these rights and juxtaposing them with the so called similar rights of non minorities, the judges went into the question what is the meaning and content of the expression ‘minorities’ in Article 30? The expression “minority” has been derived from the Latin word ‘minor’ and the suffix ‘ity’ which means “small in number”. J.A. Laponee in his book “The Protection to Minority” describes “Minority” as a group of persons having different race, language or religion from that of majority of inhabitants. In the Year Book on Human Rights U.N. Publication 1950 ed. minority has been described as non dominant groups having different religion or linguistic traditions than the majority population.

Article 30(1) uses the terms ‘linguistic’ or ‘religious’ minorities. The word ‘or’ means that a minority may either be linguistic or religious and that it does not have to be both – a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both. The constitution of India provides for special rights to both linguistic and religious minorities “to establish and administer educational institutions of their choice” under Article 30. Hence no such law can be framed as may discriminate against such minorities with regard to the establishment and administration of the educational institutions vis-à-vis other educational institutions. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to inspire in them a sense of confidence. While upholding these rights, the Supreme Court has, in the TMA Pai case, also endorsed the concept that there should be no reverse discrimination and opines that “the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The Supreme Court has time and again, in many judgements, ruled that minority status can be decided only by taking the state as a unit. It has reasoned that since ‘religious’ and ‘linguistic’ are mentioned at the same time in Article 30 of the constitution, and since the states were carved out in India by taking language as the criterion, the classification of ‘minority’ cannot be based on some other principle. Accordingly, a state government can confer minority status on an educational institute only after considering the socio-economic backwardness of the minorities in that state. This is the reason why, even though 90 per cent of the educational institutions (aided or unaided) in Kerala are run by person(s) belonging to the minority communities, the same have not been accorded minority status.

Constitutional right accorded to Minorities
(a) Article – 30
Article – 30(1) gives the linguistic or religious minorities the following two rights:
(a) The right to establish, and 
(b) The right to administer educational institutions of their choice.

Article – 30(2) bars the state, while granting aid to educational institutions, from discriminating against any educational institution on the ground that it is under the management of a linguistic or a religious minority. It mandates that in granting aid to educational institutions, the state shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

The minorities have been given protection under article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education will develop the commonness of boys and girls of India. This is in the true spirit of liberty, equality and fraternity through the medium of education. The minorities will feel isolated and separate if they are not given the protection of article 30 general secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. While moving the Draft Constitution in the Assembly on November 4, 1948, Dr. Ambedkar quoted Grote, the historian of Greece, who had said: “The constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves.” It is quite possible to pervert the Constitution without changing its form. That is exactly what is taking place in India. That was exactly what Adolf Hitler did in Germany. Without altering the form of the Weimar Constitution, he destroyed the entire constitutional spirit and, in the end, the Constitution itself. Prof. Wadhwa in D.C.Wadhwa .v. State of Bihar gives a quotation from the Roman legalist Julius Paulus (B.C. 204): “One who does what a statute forbids transgresses the Statute; one who contravenes the intention of a Statute without disobeying its actual words, commits a fraud on it.” Auto-limitation and Self-scrutiny by the judiciary: vitiates Constitutional morality and judicial values?

Now let us come to the topic. The case of T.M.A.PAI foundation is a landmark case which deals with the rights of minorities in India, which often I feel in this nation has not yet been recognised. We say India is a home to various cultures, different people and different languages. And we say that there is UNITY IN DIVERSITY. But in my personal opinion I don’t feel so… because still allot of people have been subdued under the hands of the most power handed majorities.

A brief idea about the previous and present landmark decisions that plays its due role in the rights of minorities

State of Madras v. Champakam durai rajan

It was this judgment that necessitated the Constitution First Amendment, which added Clause (4) to Article 15. It will be noticed in Article 29 that while Cl. (1) protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Cl. (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right. The section of the people, in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petnrs. are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of Art. 46 override the provisions of Art.29 (2).

Re. Kerala Education Bill

The ruling in this case has been reiterated by the Supreme Court in Guru Nanak University case. In that case, the Supreme Court rejected the contention of the state of Punjab that a religious or linguistic minority should be a minority in relation to the entire population of India. The Court has ruled that a minority has to be determined, in relation to the particular legislation which is sought to be impugned. If it is a state law, the minorities have to be determined in relation to the state population. The Hindus in Punjab constitute a religious minority. Therefore, Arya Samajistis in Punjab also constitute a religious minority having their own distinct language and script. It is within the realm of possibility that the population of a state may be so fragmented that no linguistic or religious group may by itself constitute 50 percent of the total state population. In such a situation, every group will fall within the umbrella of Art. 30(1) without there being a majority group in the state against which minorities need to claim protection.

The Court has pointed out that if various sections and classes of the Hindus were to be regarded as ‘minorities’ under art. 30(1), then the Hindus would be divided into numerous sections and classes and cease to be a majority any longer. The sections of one religion cannot constitute religious minorities. The term ‘minority based on religion’ should be restricted only to those religious minorities, e.g. Muslims, Christians, Jains, Buddhists, Sikhs, etc., which have kept their identity separate from the majority, namely, the Hindus. The provision of article 30(1) does not however mean that the state can impose no regulations on the minority institutions. In this case, the Supreme Court also observed: “The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right”. It has to be read with regulatory power of the state. Regulations which do not affect the substance of the guaranteed rights, but ensure the excellence of the institutions and its proper functioning in matters educational, are permissible.

In this case the question arose 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 population of the state forming a part of the union. It has been contended by the state of Kerala that for claiming the status of minority, the persons must numerically be a minority in the particular region in which the educational institution was situated, and that the locality or ward or town where the institution was to be situated has to be taken as the unity to determine the minority community. No final opinion on this question was expressed, but it was observed at SCR p.1050 that as the Kerala Education Bill “extends to the whole of the state of Kerala and consequently the minority must be determined by reference to the entire population of that state.” In the two cases pertaining to D.A.V.College, this court had to consider whether the Hindus were a religious minority in the Guru Nanak college case the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined… after examining the opinion of this court in the Kerala Education Bill, 1957 case the court held that the Arya Samajistis, who were Hindus, were a religious minority in the state of Punjab, even though they may not have been so in relation to the entire country. In the 1971 D.A.V.College case it was stated that “what constitutes a linguistic or religious minority must be judged in relation to the state inasmuch as the impugned Act is a State Act and not in relation to the whole of India.” The Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the state of Punjab, as it took the state as the unit to determine whether the Hindus were a minority community. There can, therefore, be little doubt that this court has consistently held that, with regard to a state law, the unit to determine a religious or linguistic minority can only be the state. The forty second amendment to the constitution included education in the concurrent list under Entry 25. Would this in any way change the position with regard to the determination of a “religious” or “linguistic minority” for the purpose of Article 30?As a result of the insertion of Entry 25 into List III, parliament can now legislate in relation to education, which was only a state subject previously. The jurisdiction of Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not violative of Article 14. It would therefore, be possible that, with respect to a particular state or group of states, parliament may legislate in relation to education. However, Article 30 gives the right to a linguistic or religious minority of a state to establish and administer educational institutions of their choice. The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. Language being the basis for establishment of different states for the purposes of Article 30, a “linguistic minority” will have to be determined in relation to the state in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put on par in Article 30.