Compendium

TC-22
4TH PADMA SHRI DR. N.N. JAIN

NATIONAL MOOT COURT COMPETITION, 2024
BEFORE THE HON'BLE SUPREME COURT OF INDRA
COMPENDIUM
OF THE CASES CITED
Ragi Teaching and Educational Trust ……………………………………..….……Petitioner

V/S
National Commission for Minority Educational Institution…………....………...Respondent
Ragananda College of Arts and Commerce ………………………………………….Petitioner

V/S
State of Ragananda…………………………………………………………………..Respondent
Ragi Sahitya Mahasabha………………………………………………………………Petitioner

V/S
State of Ragananda………………………………………………………………......Respondent
ON BEHALF OF THE PETITIONER

BY THE COUNSELS OF THE PETITIONER
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1958 SCC OnLine SC 8 : 1959 SCR 995 : AIR 1958 SC 956
In the Supreme Court of India

(BEFORE S.R. DAS, C.J. AND N.H. BHAGWATI, T.L. VENKATARAMA AYYAR, B.P.
SINHA, SYED JAFER I MAM, S.K. DAS AND J.L. KAPUR, JJ.)
IN RE THE KERALA EDUCATION BILL, 1957

REFERENCE UNDER ARTICLE 143(1) OF THE
CONSTITUTION OF INDIA.
Special Reference. No. 1 of 1958* , decided on May 22, 1958
Advocates who appeared in this case:
M.C. Setalvad, Attorney-General for India, C.K. Daphtary, Solicitor-
General of India and H.N. Sanyal, Additional Solicitor General of India,
(G.N. Joshi and R.H. Dhebar, Advocates, with them), for the President
of India;
D.N. Pritt, Senior Advocate (C.M. Kuruvilla and Sardar Bahadur,
Advocates, with him), for the State of Kerala;
G.S. Pathak, Senior Advocate, (M.R. Krishna Pillai, Advocate, with
him), for the Kerala Christian Education Action Committee;
G.S. Pathak, Senior Advocate (J.B. Dadachanji, Advocate of Rajinder
Narain & Co., with him), for the Kerala School Manager's Association;
G.S. Pathak, Senior Advocate, (V.O. Abraham and J.B. Dadachanji,
Advocate of Rajinder Narain & Co., with him), for the Aided School
Managers' Association Badogara and Quilandy, Catholic Union of India
and Catholic Association of Bombay;
Frank Anthony and P.C. Aggarwala, Advocates, for the All India
Anglo-Indian Association;
Frank Anthony and P.C. Aggarwala, Advocates, for the Apostolic
Carmel Education Society and Roman Catholic Diocese;
Nur-ud-Din Ahmed, S.S. Shukla and P.G. Aggarwala, Advocates, for
the All India Jamiat-ul-Ulema-e-Hind;
B.K.B. Naidu, Advocate, for the Kerala State Muslim League;
G.C. Kaslival, Advocate-General for the State of Rajasthan, (R.H.
Dhebar and T.M. Sen, Advocates, with him), for the State of Rajasthan;
G.C. Mathur and C.P. Lal, Advocates, for the State of U.P.
S. Eswara lyer and K.R. Chaudhury, Advocates, for the Kerala Private
Secondary School Office Staff Association and Kerala Private Teachers'
Federation.
The Opinion of the Court was delivered by
S.R. DAS, C.J.— This reference has been made by the President
under Article 143(1) of the Constitution of India for the opinion of this
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and 3 must, therefore, be in the negative.

Re. Question 2:
20. Articles 29 and 30 are set out in Part III of our Constitution
which guarantees our fundamental rights. They are grouped together
under the sub-head “Cultural and Educational Rights”. The text and the
marginal notes of both the articles show that their purpose is to confer
those fundamental rights on certain sections of the community which
constitute minority communities. Under clause (1) of Article 29 any
section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own has the
right to conserve the same. It is obvious that a minority community can
effectively conserve its language, script or culture by and through
educational institutions and, therefore, the right to establish and
maintain educational institutions of its choice is a necessary
concomitant to the right to conserve its distinctive language, script or
culture and that is what is conferred on all minorities by Article 30(1)
which has hereinbefore been quoted in full. This right, however, is
subject to clause 2 of Article 29 which provides that no citizen shall be
denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion,
race, caste, language or any of them.
21. As soon as we reach Article 30(1) learned counsel for the State
of Kerala at once poses the question : what is a minority? That is a
term which is not defined in the Constitution. It is easy to say that a
minority community means a community which is numerically less than
50 per cent, but then the question is not fully answered, for part of the
question has yet to be answered, namely, 50 per cent. of what? Is it 50
per cent of the entire population of India or 50 per cent of the
population of a State forming a part of the Union? The position taken up
by the State of Kerala in its statement of case filed herein is as follows:
“There is yet another aspect of the question that falls for
consideration, namely, as to what is a minority under Article 30(1).
The State contends that Christians, a certain section of whom is
vociferous in its objection to the Bill on the allegation that it offends
Article 30(1), are not in a minority in the State. It is no doubt true
that Christians are not a mathematical majority in the whole State.
They constitute about one-fourth of the population; but it does not
follow therefrom that they form a minority within the meaning of
Article 30(1). The argument that they do, if pushed to its logical
conclusion, would mean that any section of the people forming under
fifty per cent of the population should be classified as a minority and
be dealt with as such.
Christians form the second largest community in Kerala State;
they form, however, a majority community in certain area of the
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State. Muslims form the third largest community in the State, about
one-seventh of the total population. They also, however, form the
majority community in certain other areas of the State. [In ILR
(1951) 3 Assam 384, it was held that persons who are alleged to be
a minority must be a minority in the particular region in which the
institution involved is situated.]”
The State of Kerala, therefore, contends that in order to constitute a
minority which may claim the fundamental rights guaranteed to
minorities by Articles 29(1) and 30(1) persons must numerically be a
minority in the particular region in which the educational institution in
question is or is intended to be situate. A little reflection will at once
show that this is not a satisfactory test. Where is the line to be drawn
and which is the unit which will have to be taken? Are we to take as our
unit a district, or a sub-division or a taluk or a town or its suburbs or a
municipality or its wards? It is well known that in many towns persons
belonging to a particular community flock together in a suburb of the
town or a ward of the municipality. Thus Anglo-Indians or Christians or
Muslims may congregate in one particular suburb of a town or one
particular ward of a municipality and they may be in a majority there.
According to the argument of learned counsel for the State of Kerala
the Anglo-Indians or Christians or Muslims of that locality, taken as a
unit, will not be a “minority” within the meaning of the articles under
consideration and will not, therefore, be entitled to establish and
maintain educational institutions of their choice in that locality, but if
some of the members belonging to the Anglo-Indian or Christian
community happen to reside in another suburb of the same town or
another ward of the same municipality and their number be less than
that of the members of other communities residing there, then those
members of the Anglo-Indian or Christian community will be a minority
within the meaning of Articles 29 and 30 and will be entitled to
establish and maintain educational institutions of their choice in that
locality. Likewise the Tamilians residing in Karolbagh, if they happen to
be larger in number than the members of other communities residing in
Karolbagh, will not be entitled to establish and maintain a Tamilian
school in Karolbagh, whereas the Tamilians residing in, say, Daryaganj
where they may be less numerous than the members of other
communities residing in Daryaganj will be a minority or section within
the meaning of Articles 29 and 30. Again Bihari labourers residing in
the industrial areas in or near Calcutta where they may be the majority
in that locality will not be entitled to have the minority rights and those
Biharis will have no educational institution of their choice imparting
education in Hindi, although they are numerically a minority if we take
the entire city of Calcutta or the State of West Bengal as a unit.
Likewise Bengalis residing in a particular ward in a town in Bihar where
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management and that is taken away by clause 12(4). These are, no

doubt, serious inroads on the right of administration and appear
perilously near violating that right. But considering that those
provisions are applicable to all educational institutions and that the
impugned parts of clauses 9, 11 and 12 are designed to give protection
and security to the ill paid teachers who are engaged in rendering
service to the nation and protect the backward classes, we are
prepared, as at present advised, to treat these clauses 9, 11(2) and 12
(4) as permissible regulations which the State may impose on the
minorities as a condition for granting aid to their educational
institutions. We, however, find it impossible to support clauses 14 and
15 of the said Bill as mere regulations. The provisions of those clauses
may be totally destructive of the rights under Article 30(1). It is true
that the right to aid is not implicit in Article 30(1) but the provisions of
those clauses, if submitted to on account of their factual compulsion as
condition of aid, may easily be violative of Article 30(1) of the
Constitution. Learned counsel for the State of Kerala recognises that
clauses 14 and 15 of the Bill may annihilate the minority communities'
right to manage educational institutions of their choice but submits
that the validity of those clauses is not the subject-matter of Question
2. But, as already explained, all newly established schools seeking aid
or recognition are, by clause 3(5), made subject to all the provisions of
the Act. Therefore, in a discussion as to the constitutional validity of
clause 3(5) a discussion of the validity of the other clauses of the Bill
becomes relevant, not as and by way of a separate item but in
determining the validity of the provisions of clause 3(5). In our opinion,
sub-clause 3 of clause 8 and clauses 9, 10, 11, 12 and 13 being merely
regulatory do not offend Article 30(1), but the provisions of sub-clause
(5) of clause 3 by making the aided educational institutions subject to
clauses 14 and 15 as conditions for the grant of aid do offend against
Article 30(1) of the Constitution.
32. We now come to the last category of educational institutions
established and administered by minority communities which seek only
recognition but not aid from the State. The extreme arguments
advanced with regard to recognition by learned counsel for the State of
Kerala and learned counsel for the two Anglo-Indian schools and
learned counsel for the Muslim institutions proceed on the same lines
as those advanced respectively by them on the question as to granting
of aid, namely, that the State of Kerala maintains that the minority
communities may exercise their fundamental right under Article 30(1)
by establishing educational institutions of their choice wherever they
like and administer the same in their own way and need not seek
recognition from the Government, but that if the minority communities
desire to have State recognition they must submit to the terms
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imposed, as conditions precedent to recognition, on every educational

institution. The claim of the educational institutions of the minority
communities, on the other hand, is that their fundamental right under
Article 30(1) is absolute and cannot be subjected to any restriction
whatever. Learned counsel for the two Anglo-Indian schools appearing
on this reference, relying on some decisions of the American Supreme
Court, maintains that a child is not the creature of the State and the
parents have the right to get their child educated in educational
institutions of their choice. Those American decisions proceed on the
language of the due process clauses of the Fifth and the Fourteenth
Amendments and have no application to a situation arising under our
Constitution and we need not, therefore, discuss them in detail here.
Adverting to the two conflicting views propounded before us we repeat
that neither of the two extreme propositions can be sustained and we
have to reconcile the two, if possible. Article 26 gives freedom to
religious denominations or any section thereof, subject to public order,
morality and health, to establish and maintain institutions for religious
and charitable purposes. Article 29(1) gives protection to any section of
citizens residing in the territory of India having a distinct language,
script or culture of its own the right to conserve the same. As we have
already stated, the distinct language, script or culture of a minority
community can best be conserved by and through educational
institutions, for it is by education that their culture can be inculcated
into the impressionable minds of the children of their community. It is
through educational institutions that the language and script of the
minority community can be preserved, improved and strengthened. It
is, therefore, that Article 30(1) confers on all minorities, whether based
on religion or language, the right to establish and administer
educational institutions of their choice. The minorities, quite
understandably, regard it as essential that the education of their
children should be in accordance with the teachings of their religion and
they hold, quite honestly, that such an education cannot be obtained in
ordinary schools designed for all the members of the public but can
only be secured in schools conducted under the influence and guidance
of people well versed in the tenets of their religion and in the traditions
of their culture. The minorities evidently desire that education should
be imparted to the children of their community in an atmosphere
congenial to the growth of their culture. Our Constitution makers
recognised the validity of their claim and to allay their fears conferred
on them the fundamental rights referred to above. But the conservation
of the distinct language, script or culture is not the only object of choice
of the minority communities. They also desire that scholars of their
educational institutions should go out in the world well and sufficiently
equipped with the qualifications necessary for a useful career in life.
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But according to the Education Code now in operation to which it is

permissible to refer for ascertaining the effect of the impugned
provisions on existing state of affairs, the scholars of unrecognised
schools are not permitted to avail themselves of the opportunities for
higher education in the university and are not eligible for entering the
public services. Without recognition, therefore, the educational
institutions established or to be established by the minority
communities cannot fulfil the real objects of their choice and the rights
under Article 30(1) cannot be effectively exercised. The right to
establish educational institutions of their choice must, therefore, mean
the right to establish real institutions which will effectively serve the
needs of their community and the scholars who resort to their
educational institutions. There is, no doubt, no such thing as
fundamental right to recognition by the State but to deny recognition to
the educational institutions except upon terms tantamount to the
surrender of their constitutional right of administration of the
educational institutions of their choice is in truth and in effect to
deprive them of their rights under Article 30(1). We repeat that the
legislative power is subject to the fundamental rights and the
legislature cannot indirectly take away or abridge the fundamental
rights which it could not do directly and yet that will be the result if the
said Bill containing any offending clause becomes law. According to the
decisions of this Court referred to above, in judging the validity of any
law regard must be had to its real intendment and effect on the rights
of the aggrieved parties, rather than to its form. According to the
Education Codes certain conditions are prescribed — whether as
legislative or as executive measures we do not stop to enquire — as
conditions for the grant of recognition and it is said, as it was said
during the discussion on the question of aid, that the said Bill imposes
no more burden than what these minority educational institutions along
with those of other communities are already subjected to. As we have
observed, there can be no question of the loss of a fundamental right
merely by the non-exercise of it. There is no case here of any estoppel,
assuming that there can be any estoppel against the Constitution.
Therefore, the impugned provisions of the said Bill must be considered
on its merits.
33. By clause 19 the following clauses, namely, 7 (except sub-clause
1 and 3 which apply only to aided schools), 10 and 20 were made
applicable to recognised schools. We are prepared to accept the
provisions of sub-clause 2, 4 to 9 of clause 7 and the provisions of
clause 10 as permissible regulations but it is difficult to treat clause 20
as merely regulatory. That clause peremptorily requires that no fees
should be charged for tuition in the primary classes. There is no dispute
that the number of pupils in the primary classes is more than that in
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(1)(g) or Article 30(1).

40. I should add that in Question 2, the question of the validity of
clause (20) or clauses (14) and (15) is not expressly referred for our
opinion. But it is said that the reference to clause 3(5) attracts all the
provisions of the Bill, because the establishment of new institutions or
schools is under that clause subject to the provisions of the Bill and the
rules made thereunder. I have grave doubts whether on the terms of
the reference, we are called upon to express our opinion on the validity
of all the provisions of the Bill. The reference is not generally on the
vires of the provisions of the Bill. It is limited to the validity of specified
provisions, clauses 3(5), 8(3) and 9 to 13. There has been no
satisfactory answer to the question as to why if it was intended that we
should pronounce on the validity of all the provisions of the Bill, clauses
8(3) and (9) to (13) should have been specifically mentioned.
Moreover, the reference is preceded by detailed recitals as to the
doubts which had been raised in the mind of the President as to the
validity of certain provisions, and there is no hint therein that there was
any doubt concerning the vires of provisions other than those expressly
mentioned. If the maxim “Expressum facit cessare taciturn” can
properly be invoked in the construction of instruments, it must a fortiori
be so, in interpreting a document drawn up by the Union Government
with great care and deliberation. And having regard to the nature of the
advisory jurisdiction under Article 143, the reference should be
construed narrowly rather than broadly. But this discussion is
academic, as there have been full arguments on the validity of all the
provisions, and we are expressing our opinion thereon.
41. In the result, my answer to Question 2 is that, excepting clauses
(14) and (15), the other provisions of the Bill do not offend Article 30
(1) of the Constitution.
42. As regards schools of the Anglo-Indian Communities, Article 337
provides for aid being given to them on the conditions and to the
extent specified therein. That is outside Article 30(1) and independent
of it, and I agree with my Lord, the Chief Justice, that the provisions of
the Bill are, to the extent they affect or interfere with the rights
conferred by that article, bad.
———
* (Reference by the President of India under Article 143(1) of the Constitution of India on the
Kerala Education Bill, 1957).
1 LR (1903) AC 524, 529
2 LR (1914) AC 153, 162
3 LR (1932) AC 54, 66
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Divisional Officer, Salem in proceedings dated 28-7-1998 and the veracity of the said
documents is not disputed before us. From the factual narration, we find that right
from the inception till date, the appellant/Trust is being administered only by persons
belonging to linguistic minority and it was also established by persons belonging to
linguistic minority, namely, Telugu speaking people residing in the State of Tamil
Nadu. Article 30(1) of the Constitution cannot be read in a narrow and pedantic sense
and being a fundamental right, it should be given its widest amplitude. Since the
Founders of the appellant/Trust indisputably belong to a linguistic minority, as borne
out by unimpeachable documents, the choice to administer the institution as a
minority institution, completely lies with them. Therefore, we have no hesitation in
holding that the mother-tongue of the Trustees of the appellant/Trust is Telugu.
9. It is further contended by learned counsel for the appellant that the impugned
order dated 29-9-1998 has been issued in flagrant violation of the principles of natural
justice. It is by now well settled that any administrative order involving civil
consequences has to be passed strictly in conformity with the principles of natural
justice. Since admittedly, the impugned order dated 29-9-1998 has been passed
without affording an opportunity of being heard to the appellant, it gets vitiated.
10. Of course, learned Senior Counsel for the respondents would vehemently
contend that the appellant is not entitled to alter the nature and character of the
Trust, that in the absence of any recitals in the Trust Deed to the effect that the Trust
was created to benefit the linguistic or religious class, it must be treated as a general
public Trust, which will enure to the benefit of all and that in the document of Trust,
there is no recital that it has been created for the benefit of the linguistic minority.
11. Having bestowed our anxious consideration to the abovesaid contentions of
learned Senior Counsel for the respondents, we are afraid we cannot grant our
imprimatur to the aforesaid contentions in the face of the unimpeachable facts brought
on
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record, which would go to show that the appellant is eligible for minority status on
linguistic basis. The question was examined threadbare by the Government at the
relevant time before the declaration was issued in favour of the appellant, and
therefore, they cannot back-track, blowing hot and cold for reasons best known to
them. As already noticed, Article 30(1) of the Constitution of India cannot be read in a
narrow and pedantic sense and being a fundamental right, it should be given its
widest amplitude. Since it has been factually found that the founders of the
appellant/Trust belong to linguistic minority, as borne out by overwhelming materials,
the right to administer the institution as a linguistic minority institution, completely
lies with them. Therefore, we reject the abovesaid contentions of the respondents as
devoid of any merit.
12. It was further contended by learned Senior counsel for the respondents that in
the absence of an express clause in the original Trust Deed, the appellant cannot
legitimately claim linguistic minority status. This again is a contention which cannot be
legally countenanced. In our opinion, once it is established that the institution has
been established by a linguistic minority, and is administered by that minority, that
would be sufficient for claiming the fundamental right guaranteed under Art. 30(1) of
the Constitution. In the present case, there is no denial of this fact either in the
counter affidavit filed to the writ petition or in the impugned order passed by learned
single Judge that the institution of the appellant was not founded by persons
belonging to linguistic minority. On the other hand, the express finding in the
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impugned order of learned single Judge is that the institution is not entitled for being
conferred with linguistic minority status as the original Trust Deed did not expressly
contain a clause that it was founded by members of linguistic minority. In our
considered opinion, such a prescription is not warranted on a reading of Art. 30(1) of
the Constitution of India read with several pronouncements of the Apex Court.
13. It was finally contended by learned Senior Counsel for the respondents that in
the absence of leave of Court under S. 92(3), Civil Procedure Code (CPC), the
amendment to the Deed of Trust cannot be given legal effect to. We find no substance
in the said contention now advanced by the respondents. Nowhere, in the impugned
order of learned single Judge, or in the counter affidavit filed to the writ petition, it is
stated that the appellant which claimed the linguistic minority status, ought to have
moved the Civil Court and obtained the leave of the Court under S. 92(3), CPC by
amending its object to subserve the interest of a linguistic minority that founded it.
Such a stand, in our considered opinion, cannot be countenanced, because, such a
reasoning is not there in the impugned order of learned single Judge or in the counter-
affidavit filed by the Government to the writ petition. Secondly, even otherwise in the
light of the Government Order themselves, and in the light of the orders passed by the
Supreme Court of India, it is the State Government which has to decide the minority
status of any educational institution. That being so, the State Government cannot once
again relegate this issue to be decided by the civil Court. Once the civil Court permits
the amendment and thereafter the State Government refuses to grant the minority
status on a different interpretation of the amendment, it will tantamount to the
Government sitting in judgment over the civil Court, which again is a position
unwarranted in the eye of law.
14. At any rate, the provisions of S. 92(3), CPC cannot at all be invoked, since
there is no mention of invocation of that particular Section in any of the Government
Order issued in 1995 and 1998, based on which the minority status was granted, nor,
in the impugned order of learned single Judge, nor, in the counter affidavit filed by the
Government to the writ petition. That is not one of the reasons mentioned by the
Government which form the basis for refusing the claim of the appellant for being
continued to be recognised as linguistic minority. In any event, S. 92(3), CPC is
inapplicable to the facts of this case. Section 92(3), CPC which underwent an
amendment in the year 1976, empowers the Court to alter the original purpose of an
express or constructive trust created for public purposes of a charitable or religious
nature and allow the property or income of such trust or any portion thereof to be
applied “Cy press” in one or more of the circumstances laid down therein. It cannot be
said that any of the original purposes of the Trust, either in whole or in
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part had been fulfilled or remains partly fulfilled or cannot be carried out at all or
cannot be carried out according to the directions given in the instruments creating the
Trust. Section 92(3), CPC. only empowers the use of the property of the Trust for
religious object in “Cy press” when the property is otherwise not capable of being used
for purposes for which the Trust has been created. The “Doctrine of Cy press” would
only apply where a charitable bequest fails or incapable of being fulfilled in accordance
with the spirit or when directions of the Founder cannot be carried out for the purpose
and the spirit for which the Trust was created. That is not the case here. There is no
failure of fulfilment of any definite object. Further, a Division Bench of this Court in
B.K. Karuppannan v. V.P. Thirumalai (AIR 1962 Madras 500), while considering the
“Doctrine of Cy press” had observed that the Doctrine applies in India only to Wills and
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not to Deeds or settlement or transfers inter-vivos. The principle upon which the
Doctrine is founded, namely, the giving effect to the intention of the testator as far as
possible, cannot apply to Deeds. Literally, expression “Cy press” means approximation.
The Courts have acted on the principle that where a gift is made to charity and that
charity failed for any reason, the object of the donor or testator should not be
defeated, but the property endowed should be applied to another object
approximating as clearly as possible to the objects which the testator had in view. This
was the fundamental basis of “cy press” rule. In the present case, the Founders of the
Trust themselves are still administering the Trust and the object for which the Trust
was founded still exists and the Founders want to exercise their fundamental right
which cannot be waived or tampered with on technical grounds as in the present case,
and therefore, the invocation of S. 92(3) CPC is thoroughly misconceived.
15. In conclusion, we hold that the impugned order passed by the Government is
liable to be struck down as arbitrary and violative of Art. 14 of the Constitution of
India. It is also illegal since it has failed to take into account the relevant
considerations and has proceeded on wrong assumptions. In the absence of there
being any suppression of facts or fraud played by the appellant, or any fundamental
change of circumstances, there is no warrant for the issuance of the impugned order
passed by the Government, cancelling earlier order granting minority status to the
appellant.
16. In the result, we set aside the order of learned single Judge in W.P. No. 15517
of 1998, quash the impugned order of the Government in proceedings No. 3549/MCA
2/98, dated 29-9-1998 and allow this writ appeal as prayed. Consequently, there will
be a declaration that the appellant/Trust will be entitled to linguistic minority status as
envisaged under Art. 30(1) of the Constitution of India. No costs.
17. We have today rendered our judgment setting aside the order of learned single
Judge in W.P. No. 15517 of 1998 granting declaration that the appellant therein is
entitled to linguistic minority status as envisaged under Art. 39(1) of the Constitution
of India.
18. Since in the present writ appeal also, identical questions are involved and the
appellant and respondents are also same, the present writ appeal is also to be allowed
on like terms. Accordingly, we set aside the order of learned single Judge in W.P. No.
10616 of 1998, quash the impugned order in proceedings of the Government in Lr.
(Ms.) No. 373, dated 23-7-1998 and allow this writ appeal as prayed. Consequently,
there will be a declaration that the appellant will be entitled to linguistic status as
envisaged under Art. 30(1) of the Constitution of India. No costs.
19. Appeals allowed.
———
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GOVERNMENT OF INDIA
NATIONAL COMMISSION FOR MINORITY
EDUCATIONAL INSTITUTIONS
Guidelines for determination of Minority Status, Recognition,
Affiliation and related matters in respect of Minority Educational
Institutions under the Constitution of India.
Article 30(1) of the Constitution of India gives linguistic and

religious minorities a fundamental right to establish and administer
educational institutions of their choice. These rights are protected by a
prohibition against their violation. The prohibition is contained in
Article 13 of the Constitution which declares that any law in breach of
the fundamental rights would be void to the extent of such violation.
It is well-settled that Article 30(1) can not be read in a narrow and
pedantic sense and being a fundamental right, it should be given its
widest amplitude. The width of Article 30(1) cannot be cut down by
introducing in it considerations which are destructive to the substance
of the right enshrined therein.
The National Commission for Minority Educational Institutions
Act (for short the ‘Act’) has been enacted to safeguard the educational
rights of the minorities enshrined in Article 30(1) of the Constitution.
It has been held by the Eleven Judges Bench of the Supreme Court
in T.M.A. Pai Foundation vs. State of Karnataka (2002) 8 SCC 481
that a minority, whether linguistic or religious, is determinable only
by reference to demography of the State and not by taking into
consideration the population of the country as a whole. The application
of numerical test with reference to religion in states like Punjab, Jammu
& Kashmir and Nagaland makes Sikhism, Islam and Christianity, the
majority religions in those states respectively. (See D.A.V. College vs.
State of Punjab AIR 1971 SC 1731).
As regards the indicia to be prescribed for grant of minority status
certificate, a reference to Section 2(g) of the Act has become inevitable
as it defines a Minority Educational Institution. Section 2 (g) is as
under : -
1
“Minority Educational Institution” means a college
or institution (other than a University) established or
maintained by a person or group of persons from
amongst the minorities”
In Section 2(g), the expressions ‘established’ or ‘maintained’ have
been used by the legislature. The word ‘or’ is normally disjunctive and
the word ‘and’ is normally conjunctive (See Hyderabad Asbestos
Cement Product vs. Union of India 2000 (1) SCC 426), but at times
they are read as vice versa to give effect to the manifest intention of the
legislature as disclosed from the context. (See Ishwar Singh Bindra vs.
State of Uttar Pradesh AIR 1968 SC 140; MCD of Delhi vs. Tek Chand
Bhatia AIR 1980 SC 360)
In Azeez Basha vs. Union of India AIR 1968 SC 662, a
Constitutional Bench of the Supreme Court has held that the expression
“establish and administer” used in Article 30(1) was to be read
conjunctively that is to say, two requirements have to be fulfilled under
Article 30(1), namely, that the institution was established by the
community and its administration was vested in the community. In
S.P. Mittal vs. Union of India AIR 1983 SC 1, the Supreme Court has
held that in order to claim the benefit of article 30(1), the community
must show; (a) that it is a religious/linguistic minority, (b) that the
institution was established by it. Without specifying these two
conditions it cannot claim the guaranteed rights to administer it. Thus
the word ‘or’ occurring in the definition of minority educational
institution in Section 2(g) of the National Commission for Minority
Educational Institutions Act has to be read conjunctively as the context
showed that it was the intention of the legislature.
In St. Stephen’s College vs. University of Delhi (1992) SCC 558,
the Supreme Court has declared the St. Stephen’s College as a minority
educational institution on the ground that it was established and
administered by members of the Christian Community. Thus, these
were the indicia laid down by the Supreme Court for determining the
status of a minority educational institution and they have also been
2
incorporated in Section 2(g) of the Act. Article 30(1) of the Constitution
postulates that members of religious or linguistic minority has the right
to establish and administer educational institutions of their choice. It
is a matter of proof through production of satisfactory evidence that
the institution in question was established by the minority community
claiming to administer it. The proof of the fact of the establishment of
the institution is a condition precedent for claiming the right to
administer the institution. The onus lies on one who asserts that an
institution is a minority institution. It has been held by a Division Bench
of the Madras High Court in T.K.V.T.S.S. Medical Educational and
Charitable Trust vs. State of Tamil Nadu AIR 2002 Madras 42 that
“once it is established that the institution has been established by a
linguistic minority, and is administered by that minority, that would be
sufficient for claiming the fundamental right guaranteed under Article
30(1) of the Constitution.” The same principle applies to religious
minority also. In Andhra Pradesh Christian Medical Association vs.
Government of Andhra Pradesh, AIR 1986 SC 1490, the Supreme Court
has held that the Government, the University and ultimately the Court
can go behind the claim that the institution in question is a minority
institution and “to investigate and satisfy itself whether the claim is well
founded or ill founded.” A minority educational institution continues
to be so whether the Government declares it as such or not. When the
Government declares an educational institution as a minority institution,
it merely recognizes a factual position that the institution was established
and is being administered by a minority community. The declaration is
merely an open acceptance of the legal character of the institution which
must necessarily have existed antecedent to such declaration (N. Ammad
vs. Emjay High School (1998) 6 SCC 674).
A Society or Trust consisting of members of a minority community,
or even a single member of a minority community, may establish an
institution. The position has been clarified by the Supreme Court in
State of Kerala vs. Mother Provincial AIR 1970 SC 2079, the Supreme
Court has observed:
3
“Establishment means bringing into being of an
institution and it must be by a minority community.
It matters not if a single philanthropic individual with
his own means, institution or the community at large
founds the institution or the community at large
contributes the funds. The position in law is the same
and the intention in either case must be to found an
institution for the benefit of a minority community
by a member of that community. It is equally
irrelevant to this right that in addition to the minority
community, others from other minority communities
or even from the majority community can take
advantage of these institutions.”
(emphasis supplied)
In Christian Medical Association (supra) the Supreme Court has
also held that “what is important and what is imperative is that there
must exist some real positive index to enable the institution to be
identified as an educational institution of the minorities.” Needless to
add here that the right enshrined in Article 30(1) of the Constitution
is meant to benefit the minority by protecting and promoting its
interests. There should be a nexus between the institution and the
particular minority to which it claims to belong. The right claimed by
a minority community to administer the educational institutions
depends upon the proof of establishment of the institution. In P.A.
Inamdar vs. State of Mahrashtra (2005) 6 SCC 537, following questions
arose for consideration:
i) Whether a minority educational institution, though established
by a minority, can cater to the needs of that minority only?
ii) Can there be an inquiry to identify the person or persons who
have really established the institution?
iii) Can a minority institution provide cross border or inter state
educational facilities and yet retain the character of minority
educational institution?
4
It has been held in Inamdar’s case (supra) “the minority institutions
are free to admit students of their own choice including students of
non-minority community and also members of their own community
from other States, both to a limited extent only and not in a manner
and to such an extent that their minority educational status is lost. If
they do so, they loose the protection of Article 30(1) of the
Constitution”.
It has been held in Kerala Education Bill AIR 1958 SC 956 that
“Articles 29(2) and 30(1), read together, clearly contemplate a minority
institution with a ‘sprinkling’ of outsiders” admitted in it. By admitting
a member of non minority into the minority institution it does not
shed its character and cease to be a minority institution”.
It has to be borne in mind the right guaranteed under Article 30(1)
is a right not conferred on individuals but on religious denomination
or section of such denomination. It is also universally recognised that
it is the parental right to have education of their children in the
educational institutions of their choice. It has been held by a Full Bench
of the Karnataka High Court in Associated Managements of Primary
and Secondary Schools in Karnataka vs. State of Karnataka and Ors.
2008 K.L.J 1 (Full Bench) that the words of “their choice” which qualify
“educational institutions” shows the vast discretion and option which
minorities have in selecting the type of the institution which they want
to establish.”
Needless to add here that an educational institution is established
to subserve or advance the purpose for its establishment. Whereas the
minorities have the right to establish and administer educational
institutions of their choice with the desire that their children should
be brought up properly and be eligible for higher education and go all
over the world fully equipped with such intellectual attainments as it
will make them fit for entering the public service, surely then there
must be implicit in such a fundamental right the corresponding duty
to cater to the needs of the children of their own community. The
beneficiary of such a fundamental right should be allowed to enjoy it
in the fullest measure. Therefore, the educational institutions of their
5
choice will necessarily cater to the needs of the minority community
which had established the institution.
Mere receipt of state aid does not annihilate the right guaranteed
under Article 30(1). It has been held in the case of P.A. Inamdar (Supra)
that “a minority institution does not cease to be so, the moment grant-
in-aid is received by the institution. An aided minority educational
institution, therefore, would be entitled to have the right of admission
of students belonging to the minority group and at the same time,
would be required to admit a reasonable extent of non-minority
students, so that the rights under Article 30(1) are not substantially
impaired and further the citizens’ rights under Article 29(2) are not
infringed. What would be a reasonable extent, would vary from the
types of institution, the courses of education for which admission is
being sought and other factors like educational needs. The State
Government concerned has to notify the percentage of the minority
students to be admitted in the light of the above observations.”
Their Lordships of the Supreme Court has further observed in the
case of P.A. Inamdar (Supra) that “the object underlying Article 30(1)
is to see the desire of minorities being fulfilled that their children should
be brought up properly and efficiently and acquire eligibility for higher
university education and go out in the world fully equipped with such
intellectual attainments as will make them fit for entering public
services, educational institutions imparting higher instructions
including general secular education. Thus the twin objects sought to
be achieved by Article 30(1) in the interest of minorities are: (i) to
enable such to conserve its religion and language, and (ii) to give a
thorough good general education to the children belonging to such
minority. So long as the institution retains its minority character by
achieving and continuing to achieve the aforesaid two objectives, the
institution would remain a minority institution.”
In St. Stephen’s case the Supreme Court had ruled that Article
30(1) is a protective measure only for the benefit of the religious and
linguistic minorities and “no ill fit or camouflaged institution can get
away with a constitutional protection.”
6
Emphasising the need for preserving its minority character so as
to enjoy the privilege of protection under Article 30(1), it is necessary
that the objective of establishing the institution was not defeated. The
management of a minority institution cannot resort to the device of
admitting the minority students of the adjoining state in which they
are in majority to preserve minority status of the institution. Reference
may, in this connection be made to the following observations made
in the case of T.M.A. Pai (Supra): -
“……..If so, such an institution is under an obligation
to admit the bulk of the students fitting into the
description of the minority community. Therefore
the students of that group residing in the State in which
the institution is located have to be necessarily
admitted in a larger measure because they constitute
the linguistic minority group as far as that State is
concerned. In other words the pre-dominance of
linguistic minority students hailing from the State in
which the minority educational institution, is
established should be present. The Management bodies
of such institutions cannot resort to the device of
admitting the linguistic students of the adjoining states
in which they are in a majority, under the facade of
the protection given under Article 30(1)”.
In Inamdar’s case (supra) the said proposition of law has been
applied to religious minority. According to their Lordships, “if any
other view was to be taken the very objective of conferring the
preferential right of admission by harmoniously construing Article
30(1) and 29(2) may be distorted”. It was further observed in Inamdar’s
case that “it necessarily follows from the law laid down in T.M.A Pai
Foundation that to establish a minority institution the institution must
primarily cater to the requirements of that minority of that State else
its character of minority institution is lost. However, to borrow the
words of Chief Justice S.R. Dass in Kerala Education Bill, “a sprinkling
of that majority from the other States on the same footing as a sprinkling
7
of non minority students would be permissible and would not deprive
the institution of its essential character of being a minority institution,
determined by reference to that State as a unit”.
As regards the prescription of a percentage governing admissions
in a minority educational institution, it would be useful to excerpt the
following observations of their lordships of the Supreme Court in
T.M.A. Pai foundation Case vs. State of Karnataka (2002) 8 SCC 481.
“……..The situation would vary according to the type of
institution and the nature of education that is being imparted in the
institution. Usually, at the school level, although it may be possible to
fill up all the seats with the students of the minority group, at the
higher level, either in colleges or in technical institutions, it may not
be possible to fill up all the seats with the students of the minority
group. However, even if it is possible to fill up all the seats with students
of the minority group, the moment the institution is granted aid; the
institution will have to admit students of the non minority group to a
reasonable extent, whereby the character of the institution is not
annihilated, and at the same time, the rights of the citizen engrafted
under Article 29(2) are not subverted.”
The State Government can prescribe percentage of the minority
community to be admitted in a minority educational institution
taking into account the population and educational needs of the area
in which the institution is located. There cannot be a common rule
or regulation or order in respect of types of educational institutions
from primary to college level and for the entire State fixing the
uniform ceiling in the matter of admission of students in minority
educational institutions. Thus a balance has to be kept between two
objectives – preserving the right of the minorities to admit students of
their own community and that of admitting “sprinkling of outsiders”
in their institutions subject to the condition that the manner and
number of such admissions should not be violative of the minority
character of the institution. It is significant to mention here that Section
12C (b) of the Act also empowers the State Government to prescribe
percentage governing admissions in a minority educational
8
institution. Thus the State Government has to prescribe percentage
governing admissions of students in the minority educational
institutions in accordance with the aforesaid principles of law
enunciated by their lordships of the Supreme Court in the cases of
T.M.A. Pai Foundation and P.A. Inamdar (supra).
The emphatic point in the P.A. Inamdar (Supra) reasoning is that
the minority educational institution is primarily for the benefit of
minority. Sprinkling of the non-minority students in the student
population of minority educational institution is expected to be only
peripheral either for generating additional financial source or for
cultural courtesy. Thus, a substantive section of student population in
minority educational institution should belong to the minority. In the
context of commercialisation of education, an enquiry about
composition of student population of minority educational institution
will reveal whether the substantive peripheral formula that can be
gathered from P.A. Inamdar is adequately complied with or whether
minority educational institution is only a façade for money making.
It needs to be highlighted that Sec. 2 (f ) of the Central Educational
Institutions (Reservation in Admission) Act, 2006, defines a minority
educational institution as under: -
“Minority Educational Institution” means an
institution established and administered by the
minorities under clause (1) of article 30 of the
Constitution and so declared by an Act of Parliament
or by the Central Government or declared as a
minority educational institution under the National
Commission for Minority Educational Institutions
Act, 2004;
(emphasis supplied)
On a reading of Article 30(1) of the Constitution read with several
authoritative pronouncements of the Supreme Court and the
definitions of Minority Educational Institution in Section 2(g) of the
Act and Section 2(f ) of the Central Educational Institutions
9
(Reservation in Admission) Act, 2006, the following facts should be
proved for grant of minority status to an educational institution on
religious basis:
(i) that the educational institution was established by a member/
members of the religious minority community;
(ii) that the educational institution was established for the benefit
of the minority community; and
(iii) that the educational institution is being administered by the
minority community.
The aforesaid facts may be proved either by direct or circumstantial
evidence. There must be some positive index to enable the educational
institution to be identified with religious minorities. There should be
nexus between the means employed and the ends desired. If the minority
educational institution concerned is being run by a trust or a registered
society, then majority of the trustees of the trust or members of the
society, as the case may be, must be from the minority community and
the trust deed/ Articles of Association or any other document duly
executed in this regard must reflect the objective of sub-serving the
interest of the minority community. In the absence of any documentary
evidence some clear or cogent evidence must be produced to prove the
aforesaid facts. There is no bar to the members of other communities
to extend their help to the member of a minority community to establish
an educational institution of its choice. (See S.K. Patro vs. State of
Bihar AIR 1970 SC 259).
As has been held by the Madras High Court in T.K.V.T.S.S. Medical
Educational & Charitable Trust vs. State of Tamil Nadu AIR 2002
Madras 42 that a minority status can not be conferred on a minority
educational institution for particular period to be renewed periodically
like a driving license. It is not open for the State Government to
review its earlier order conferring minority status on a minority
educational institution unless it is shown that the institution
concerned has suppressed any material fact while passing the order
of conferral of minority status or there is fundamental change of
10
circumstances warranting cancellation of the earlier order. Reference
may, in this connection, be made to the following observations of their
lordships : -
“…………….In conclusion, we hold that if any entity
is once declared as minority entitling to the rights
envisaged under Article 30(1) of the Constitution of
India, unless there is fundamental change of
circumstances or suppression of facts the Government
has no power to take away that cherished
constitutional right which is a fundamental right and
that too, by an ordinary letter without being preceded
by a fair hearing in conformity with the principles of
natural justice.”
(emphasis supplied)
It is now well settled that any administrative order involving civil
consequences has to be passed strictly in conformity with the principles
of natural justice (See AIR 1978 S.C. 851). If any order relating to
cancellation of minority status granted to a minority educational
institution has been passed without affording an opportunity of being
heard to such educational institution, it gets vitiated.
If a minority status certificate has been obtained by practicing fraud
or if there is any suppression of any material fact or any fundamental
change of circumstances warranting cancellation of the earlier order,
the authority concerned would be within its powers to cancel the
minority status certificate after affording an opportunity of being heard
to the management of the institution concerned, in conformity with
the principles of natural justice.
It is also relevant to note that the minority status certificate granted
by this Commission or by any authority can be cancelled under Section
12C of the Act on violation of any of the conditions enumerated therein.
Section 12C is as under: -
“12C. Power to cancel.-The Commission may, after
giving a reasonable opportunity of being heard to a
11

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TC-22

4TH PADMA SHRI DR. N.N. JAIN

BEFORE THE HON'BLE SUPREME COURT OF INDRA

Ragi Teaching and Educational Trust ……………………………………..….……Petitioner

Ragananda College of Arts and Commerce ………………………………………….Petitioner

Ragi Sahitya Mahasabha………………………………………………………………Petitioner

ON BEHALF OF THE PETITIONER

1958 SCC OnLine SC 8 : 1959 SCR 995 : AIR 1958 SC 956

In the Supreme Court of India

IN RE THE KERALA EDUCATION BILL, 1957

and 3 must, therefore, be in the negative.

management and that is taken away by clause 12(4). These are, no

imposed, as conditions precedent to recognition, on every educational

But according to the Education Code now in operation to which it is

(1)(g) or Article 30(1).

1 LR (1903) AC 524, 529

2 LR (1914) AC 153, 162

Article 30(1) of the Constitution of India gives linguistic and

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