Session 27

T.M.A. Pai Foundation and Ors. Vs. State of Karnataka and Ors
Writ Petition (Civil) 317 of 1993
Decided on: 31.10.2002

Honourable Judges/Coram:
B.N. Kirpal, C.J., G.B. Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P.
Venkatarama Reddi, Dr. Arijit Pasayat, V.N. Khare, S.S.M. Quadri, Ruma Pal,
S.N. Variava and Ashok Bhan, JJ.

Constitutional Law- II
Case Comment- II

Name: Smriti Sultania

L23074/LLBH
Year I, Trimester III
AY 2023-24
Substantive Word Count: 1254 words
 I. Introduction

This Eleven bench case1 emerged due to the excessive control exerted by the government
over private education, impeding the advancement of quality education in these
establishments. The court delved into the level of regulation permissible for both aided and
unaided private institutions, spanning from schools to professional institutions. However, the
central issue revolved around the extent of administrative autonomy granted to aided private
minority institutions. In the establishment of educational institutions, three Articles of the
Constitution are relevant. For non-minorities, the right is outlined in Article 19(1)(g) 2 and
Article 263, whereas for linguistic and religious minorities, it was argued that Article 30(1)4
enshrines and safeguards this right.

When considered together, these Articles grant every religious denomination the right to
establish and manage educational institutions, with the caveat that this must align with public
order, morality, and health. Unlike Articles 255 and 26, Article 30(1) does not explicitly
mention that this right is subject to public order, morality, health, or other provisions of Part
III6. Nor does it specify that the right to establish and manage minority educational
institutions is subject to any regulations. Therefore, the question arose if Article 30(1) can be
interpreted as granting minorities, whether based on religion or language, an absolute right to
establish and manage educational institutions?

Case laws7 have held that while minorities have the right to administer educational
institutions, reasonable regulations can still be imposed on these institutions. Such regulations
must pass two tests: they must be reasonable, and they must contribute to maintaining the
educational character of the institution, ensuring it effectively serves the minority community
or others who use it. However, these regulations should not compromise the minority nature
of the institution, necessitating a delicate balance between the two objectives.

II. Issue

1
T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355
2
The Constitution of India 1950, art 19(1)(g)
3
Ibid art 26
4
Ibid art 30(1)
5
Ibid art 25
6
Ibid Part III
7
In Re: The Kerala Education Bill, 1957. ... vs Unknown [1959]1SCR995; The Ahmedabad St. Xaviers College
Society and Anr. Etc. v. State of Gujarat and Anr. [1975]1SCR173
The primary contention however was regarding the interplay between A.30(1) and 29(2)8 of
the Constitution9. These articles read together are in stark contrast to each other. While A.29(2)
allows for no discrimination in religion, race, caste or language in the admission process to
state aided educational institutions whereas A.30(1) allows minorities to establish and
administer their own educational institutions as per their choice. In essence the contention is
whether the right to administration includes within it the right to admit students as per their
own choice, to uphold their minority character. In brief this comment states the various ways
in which the eleven judge bench tried to resolve this tussle and in essence how the majority
judgment, the concurring judgment and the dissenting opinion ended up doing the same thing,
only through different means. The judgment of B.N. Kirpal, V.J. Khare and S.N. Variava is
analyzed to show this irony.

III. Is Article 29(2) subject to provisions of A.30(1)?

The majority10, concurring11, and dissenting12 opinions in this case all agree that Article 30(1)
is subject to Article 29(2) of the Constitution. However, they differ in their approaches
thereafter. The majority suggests interpreting the term 'only' in Article 29(2) to include
preserving the character of minority institutions, thus linking religious discrimination not solely
to religion but also to maintaining the minority institution's character. The concurring opinion
proposes applying the doctrine of real de facto equality, allowing minorities to prioritize their
own community in admissions while adhering to Article 29(2)'s non-discrimination principle.
The dissenting opinion argues that a minority institution's character remains intact even with a
majority of students from other communities, as long as minority management persists. It
advocates for preference only when all other factors, such as merit, are equal, with additional
methods like interviews ensuring sufficient representation from minority communities.

IV. The Majority Opinion

The majority argument rests on the assumption that minority institutions are inherently unable
to function effectively without state aid and are economically or socially disadvantaged. This
idea is illustrated by comparing state aid to a mother providing extra care to a stunted child.
However, Justice Variava's dissent challenges this assumption, asserting that Article 30 does

8
The Constitution of India 1950, art 29(2)
9
The Constitution of India 1950
10
T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355 para 144
11
Ibid para 225
12
Ibid para 419
not address economically or socially backward minorities, nor does it suggest that their children
are incapable of competing on merit. Therefore, there's no justification for treating them
differently from the majority. Accepting state aid is a choice, not a necessity, so institutions
opting for it should adhere to Article 29(2) provisions.

Moreover, the Bombay Education Society13 case is cited to refute the argument that preserving
a minority institution's status overrides the restriction posed by the word 'only'. In this case,
limiting admission to English speakers was argued as a discrimination not solely based on
language but aimed at promoting the national language and facilitating education in the mother
tongue. However, the court ruled that in so far, the effect of the order involved an infringement
of this fundamental right, its laudable objective was not sufficient to override the provisions of
A.29(2). Similarly, favouring students of a particular religion for upholding the minority status
of an educational institute, while a good cause, still amounts to discrimination based on
religion.

V. The Concurring opinion

The concurring opinion explicitly states that A.30(1) is subject to provision of A.29(2), but
contends that the former holds within itself the inherent right to admit members of its own
community. Thus, taking away that right on receiving state aid, tantamounts to destroying the
essence of the provision. ‘Preference’ to be given to members of a particular community is a
watered-down version of stating that discrimination is necessary and permissible. In the aim of
balancing these two provisions, the opinion contradicts itself, as it essentially creates a very
strong case as to how 30(1) is not an exception to 29(2) but ends up reading that exception
anyways.

VI. The Dissenting Opinion

The dissenting opinion is a primarily textual, which cautions against interpretation of clear
provisions. It states that the courts cannot give an interpretation, not supported by a plain
reading, on considerations, such as minority educational institutions not being able to admit
their own students. It reiterates the fact laid down in Kerala Education Bill14, that just because
students of other communities are admitted, the institute does not lose its minority character.
The right is a special right which is given by way of protection so that the majority, which is

13
The State Of Bombay vs Bombay Education Society And Ors. 1954 AIR 561
14
In Re: The Kerala Education Bill, 1957. ... vs Unknown [1959] 1 SCR 995
politically powerful, does not prevent the minorities from establishing their educational
institutions. This right, however, was not created because the minorities were economically and
socially backward or that their children were less meritorious. This right was also not conferred
in order to create a special category of the citizens. In all, the right was parallel to that of the
majority community, to establish and administer educational institutions at their own cost.

While the dissenting opinion is very out and about the scope of A. 30(1), it falls short of
providing adequate measures to solve the problem of inadequate minority representation in
these very institutions. It suggests alternative criteria such as interviews, weighted at no more
than 15%, to boost minority admissions. However, these measures still encounter the same
challenges, albeit on a smaller scale. It makes the marks received from common entrance
examinations as meritorious and therefore beyond tampering, while allowing leeway in
interviews to correct the proportion of minority intake. A.29(2) is encompassing all these
admission provisions when demanding for non-discrimination. To say an interview is outside
of the purview of this provision, is simply adding loopholes to navigate the law.

VII. Conclusion

T.M.A. Pai15 in essence lays down that there needs to be a balancing act between A.29(2) and
A.30(1) to maintain the essence of both these provisions. In practicality, it reads the latter as an
exception to the former while there is enough evidence(raised by the dissenting opinion) that
the vice versa could also very well be true. It underscores the inherent tendencies of the judges
to arrive at decisions based on their own understanding of their current social milieu and then
devising constitutional arguments to justify their position. While this method is not necessarily
wrong, it makes us more cautious of how laws are interpreted and the judge’s discretion that
goes in it.

15
T. M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355