CASE ANALYSIS

P.A. Inamdar and Ors.

Vs.
State of Maharashtra and Ors.
(AIR 2005 SC 3326)

 Submitted by: Dev Dhar Dubey

 Registration No.: 22MCAL04

Supreme Court Decided it on 12th August,2005 (AIR 2005 SC 3326, MANU/SC/0482/2005)

 Hon’ble Judges / Coram

subra
1 R.C. Lahoti 2 Y.K. Sabharwal 3 D.M. Dharmadhikari 4 Arun Kumar
Chief Justice

5 G.P. Mathur 6 Tarun Chatterjee 7 P.K. Balasubramanyam

 Background of the Case
• Issues related to Unaided minority or non-minority institutions under Article 19(1) (g), (29) and
30(1) was decided by 11-Judge Bench in T.M.A. Pai Foundation V. State of Karnataka, 2002.
• Certain Controversies resolved by T.M.A. Pai Foundation but High Courts flooded with Writs
requesting for clarity and setlling certain issues which were still unresolved or unclear. Few SLP
is filed in Supreme Court too.
• 5 Judges Constitutional Bench sat in case of Islamic Academy of Education & Anr V. State of
Karnataka, 2003, to interpret 11-Judge Bench decision in T.M.A. Pai Foundation.
• Still certain uncertainity and some issues remained unsettled, so this 7 Judges Bench.
 Constitutional Provisions
Article 29. Protection of interests of minorities -

• (1) 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 shall have the right to conserve the same.

• (2) 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.
 Constitutional Provisions
Article 30. Right of minorities to establish and administer educational institutions-

• (1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.

• (2) The state shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language.
 Cases Referred
1. In Re: Kerala Education Bill, 1957
2. T.M.A. Pai Foundation V. State of Karnataka, 2002
3. Islamic Academy of Education and Anr. V. State of Karnataka, 2003
4. Unni Krishnan V. State of Andhra Pradesh, 1993
5. St. Stephen’s College V. University of Delhi, 1992
6. Ahmedabad St. Xavier’s College Society V. State of Gujarat, 1974a
 T.M.A. Pai Foundation Case
• 11 JudgesBench - Five Opinions Delivered.
 B.N. Kirpal, C.J. (Majority) on behalf of 5+Khare=6 Judges
 Khare, J (Separate but concurring opinion)
 Quadri, J
 Ruma Pal, J
 Variava, J (for himself and Bhan, J)
 T.M.A. Pai Foundation Case
• FIVE HEADS OF ISSUES
1. Is there Fundamental Right to set up educational institutions and if yes, under which
provision?
2. Does Unni Krishnan require reconsideration?
3. In case of private institutions, can there be government regulation and, if yes, to what extent?
4. What to be used as Unit to determine the exisnce of a religious or linguistic miniority, State or
Country as a Whole?
5. To what extent can the rights of aided private minority institutions to administer be regulated?

(Paragraph 12 of the P.A. Inamdar Judgment in Manupatra)

 T.M.A. Pai Foundation Case
1. Determination of Linguistic and Religious Minority: ‘State’ as Unit not Country as a whole.
2. Professional education would be covered under Article 30: ‘of their own choice’
3. Regulation of admission: A facet of ‘Right to Administer’.
 Unaided Minority Educational institutions: Can’t be regulated except for- Setting up academic
standards like qualifications and minimum conditions, ensuring merits and transparency.
 Aided Minority Educational institutions: Entitle to right to admission from minority but would
be require to admit reasonable non-minority student,w/o effecting rights U/A 29 & 30
 Reasonable Extent: Vary from type of institutions, course, educational needs etc.
 State Govt. may fix certain percentage of non-minority students to be admitted, if aided.
(Paragraph 13 of the P.A. Inamdar Judgment in Manupatra)
 T.M.A. Pai Foundation Case
 Aided Professional institutions: Common Entrance Exam is permitted to ensure merit.
4. Minority rights to establish and administer includes procedure and methods of admission, BUT..
I. Procedure must be fair and transparent.
II. On the basis of Merit.
III. No- Mal-administration is permitted
5. Affect of Recieving State-Aid by Minority Institutions:
 State can prescribe rule or regulations, merit for admission, reservation policy, Common
entrance exam, consideration for weaker section of society.
 Day to Day activity like appointment and administrative control should be free for minority
institutions and State has minimal interference.
 T.M.A. Pai Foundation Case
 St. Stephens College V. University of Delhi:
• Held to be correct.
• However, rigid percentage can not be fixed
• Such percentage is left to authorities having regard to type of institutions, population and
educational needs of minority.
 Unni Krishnan V. State of A.P.:
• Scheme framed and direction to impose it, is Unconstitutional.
• No Capitation fee or Profitering is permitted.
• Reasonable Surplus for expansion, permitted.
 T.M.A. Pai Foundation Case
• QUESTIONS UNANSWERED:
1. What is ‘religion’ and can a particular sect of majority religion claim minority protection under
Article 30(1) of the Constitution.
2. What is Indica of treating educational institutions as minority educational institutions?
3. Minority institution of one state can give these benefits to religious/linguistic group from other
state, where in majority?
4. Whether linguistic non-minority in one state can establish trust/society in other state and claim
minority status?
(Paragraph 13 of the P.A. Inamdar Judgment in Manupatra)
 Islamic Academy Case
• Pai Foundation Judgment was differently interpreted by State Govt and Educational
Institutions. and State Govt. come up with laws and regulations to govern all educational
institutions.
• Seeking Clarification, unaided professional educational institutions, both minority and non-
minority calls for removal of doubts and anomalies in Pai Foundation Judgment.
 FOUR QUESTIONS ARISES:
1. Whether educational institutions are entitled to fix their own fees?
2. Whether minority & non-minority educational institutions have same rights & on same footing?
3. Whether private unaided professional colleges can fill upto 100% seats?
4. Whether private unaided professional colleges can admit by their own method of admission?
 Islamic Academy Case
 Whether educational institutions are entitled to fix their own fees?
• YES, but No Capitation and No Profiteering.
• Reasonable Surplus for future expansion is allowed.
• S.B. Sinha, J, held that suplus should be between 6% to 15% for expansion and development.
 Whether minority & non-minority educational institutions have same rights & on same footing?
• Majority held that minority institutions stand on a better footing and having ‘special right’.
• S.B. Sinha, J, held that both are equal and on same footing and Art 30 is just a ‘additional
protection’.
 Islamic Academy Case
 Whether private unaided professional colleges can fill 100% seats by own method of admission?
1. Unaided professional institutions- Full autonomy in administration, but Merit can’t be
sacrificed.
2. Unaided institutions- Merit may be put as a condition for recognition and management can
pick up students of their own choice subject to Merit and Common Entrance Exam.
3. State can provide for reservation in favour of financially or socially backward sections.
4. Allotment of different quotas (Management quota & State Quota), has to be done by State
considering “Local needs” & interest of minority community. Common entrance exam was
approved considering hardship faced by students.
 Issues Raised
1. ‘Fixation’ of ‘quota of admission/students wrt unaided professional institutions.
2. Fee Structure
3. Common Entrance Exam
 QUESTIONS
1. To what extent State can regulate the admission by unaided educational institutions
(minority or non-minority both) & can state enforce its reservation policy.
2. Whether unaided educational institutions (minority or non-minority both) are free to devise
their own admission procedure and validity of Common Entrance Exam.
3. Validity of the guidelines for fee payable to the educational institutions.
4. Validity of the committees set up by the court.
 Submission by Petitioners
 Shri Harish Salve contends that : (Para 30-38)
1. Directions for setting up Permanent Committee for regulating admission & fee in Unaided
minority & non-minority institutions is contrary to Pai Foundation & earlier decisions.
2. Fixing Quota and Fee seriously infringe the constitutional guarantee of autonomy to
minority institutions under Articles 29 & 30.
3. Regulating admission and fee is nor ‘reasonable restriction’ under Article 19(1)(g).
4. State can prescribe minimum qualifications, merit, common entrace test but ‘right of
rational selection’ include right to decide methods of admission.
5. State providing for Admission and Fee amounts to ‘Nationalization of Admission’.
(Reference were made to paragrapgh 38 and 40 of Pai Foundation)
 Submission by Petitioners
 Shri Harish Salve contends that : (Para 30-38)
6. He relied on Unni Krishnan, where such committee was held to be Unconstitutional.
7. Obligation on state to provide educational facilities, does not entitle the State to Nationalize it
on the ground of ‘State Necessity’.
8. He agreed that rights under Art 30 is not absolute and state can make reasonable regulations to
prevent Mal-administration but if it impinges upon minority character, it is impermissible.
9. He made distinction b/w aided & non-aided institutions. Regulation as to admission and fee is
allowed for aided but it is not for unaided where state can interfere to prevent mal-
administration.
 Submission by Petitioners
 Shri Ashok Desai contends that : (Para 39-42)
• He questioned the correctness of directions in case of Islamic Academy for fixing quota & fee.
• There can’t be indirect nationalization and complete state control of unaided prefessional
institutes, in the name of controlling capitation.
• Setting up institutions by minority community would be defeated if state is allowed to
interfere.
• Private educational institutions have right to admit students and fix fee, ensuring merit &
transparency.
 Shri U.U. Lalit suggested 25%, 50%, 25% avg fee at three different level so as to admit
meritorious students coming from all sections of society.
 Submission by Petitioners
 Shri F.S. Nariman contends that:
• Fixing 50:50 quota between state and management as referred in St. Stephen’s was never
suggested by Pai Foundation.
• Islamic Academy suggested for fixing percentage of quota which is totally a new direction.
• Para 68 of Pai Foundation not to be read as the ratio of the case.
• “Essence of the reason/ principle upon which the case decided is alone binding as precedent. It is
dangerous to take one or two observations out of a long judgment and treat it as ratio of the
case.”
 Shri Dr. Rajiv Dhawan contends the same as other that Pai Foundation not provides for
Fixation of quotas, or fee or imposition of reservation or common entrance exam or
permanent committees as such.
 Submission by Respondents
 Shri K.K. Venugopal:
• Para 67-70 of Pai Fondation is the majority opinion, carries the title “Private Unaided
Professional colleges” which covers both unaided minority and non-minorty professional
colleges.
• He highlighted illicit practices and need to control profiteering and Capitation.
• Argued that, if permanent committees is not allowed, already commercialized education will be
“inaccessible to students” from middle and poor section of the society.
• Bench is not considering the correctness of the Islamic Academy and it can’t got into question
of correctness of judgment in Pai foundation, which is 11 bench decision.
 Submission by Respondents
 Shri K.K. Venugopal:
• Para 68-69 under heading “Private Unaided Professional Colleges” indicates need of
appropriate machinery to regulate admissions in both cateogy of Private institutions.
• Islamic Academy made a reasonable and plausible interpretation and there is no need to
substitute another interpretation.
• Imparting Education is a ‘occupation’ and thus a fundamental right.
• Regulation of ‘Non-minority unaided professional institution’ is permissible to prcvent
profiteering, capitation fee and selection of non-meritorious students.
• Status of minority is to be determined at the state level and they can’t claim right to cater need
of their community from all over the country and even from abroad.
 Submission by Respondents
 Shri K.K. Venugopal:
• Paragraph 68 of Pai Foundation uses the phrase 'certain percentage based on local needs'
and further phrase 'different percentages can be fixed' for minority unaided and non-
minority unaided professional colleges' clearly convey that quotas can be fixed based on local
needs for management and for the Government.
• Selection based on merit is concerned, common entrance test has been suggested both for
aided and non-aided professional colleges.
• Full discretion to management to decide fee & committee is there to check that it is
reasonable and does not amout to profiteering or capitation fee.
• Cross-subsidizing the weaker section by affluent ones is permissible & so do 15% NRI quota .
 Submission by Respondents
 Shri T.R. Andhyarjuna:
• Para 58, 59 and 68 to be read and reconciled with answer of question 4 of Pai Foundation and
can’t be ignored as obiter.
• State can make regulations for minority and non-minority educational institutions including
reservation on certain percentage of seats.
• Need to balance ‘Autonomy’ of such institutions and ‘state regulation in larger interest’
• Need of appropriate measure to check profiteering and capitation fee is fulfilled by the
committee set up by the States on courts direction.
• Islamic Academy merely implements legal provision explained in Pai Foundation.
 Shri P.P. Rao relied upon the fundamental duties U/A 51A(j).
 Judicial Pronouncement
 For sake of interpretation Para 68 of Pai Foundation can be divided into two heads-
1. First Part of Paragraph of 68 is law laid down by Majority.
2. Second Part of Paragraph of 68 is only Illustration.
 Right to Establish and Administer an institution includes-
1. To Admit students
2. To set up Reasonable Fee Structure
3. To constitute a Governing Body
4. To Appoint Staff (Teaching and non-Teaching)
5. To take action if there is dereliction of duty on part of employees
(Para 50 of T.M.A Pai Foundation)
 Judicial Pronouncement
1. Unaided and Unrecognized: Unhampered Rights except in National Interest and prevent
exploitation of student and teachers. Also, can’t violate law of the land.
2. Receiving State Aid: Conditions as to proper utilization of grant (Para 120 Not dealt in detail)
3. Unaided and seeking Recognition: Certain limitations by the State to prevent Mal-
Administration and for maintaining standards, but, not to interfere in day to day
administration.
 TRIPLE TESTS: (Para 122, Pai Foundation)
1. Test of Reasonableness and Rationality.
2. Regulation is conducive to make institution an effective vehicle of Education for Minority
3. Essential Character is not taken away by the regulation
 Judicial Pronouncement
 Seat sharing and enforcing reservation on unaided professional educational institutions by
State is neither in Pai Foundation nor in Kerala Education Bill.
 Autonomy to unaided professional institutions and Minimal regulation by the state was clearly
held in Pai Foundation.
 Court overruled that part of Islamic Academy that allow States to fix quota for seats sharing.
 NRI Seats: 15% seats allowed to Cross-subsidize economically weaker section.
 Held permissible for State to regulate admission in larger interest and to promote merit,
transparency, excellence and curb mal-administration. Also, allowed Centralized Exam.
 Held, every institution is free to regulate fee but check on Profiteering & Capitation Fee.
 Two Temporary Committee’s are held to Valid and consistent with earlier decisions.
 Post- P.A. Inamdar
 93rd Constitution Amendment Act, 2006: Provision for Reservation of Backward, SC and ST
classes in private educational institutions (article 15(5))
THANKS