The lawsuit gives a critical analysis of the TMA Pai v/s State Of Karnataka AIR 2003 SC 355.

This case is a landmark judgement that has given answers to plenty of questions regarding the minorities rights and government regulations in the administration of educational institutions. TMA PAI foundation v State of Karnataka give light on how article 29(2) apply to article 30(1).

On behalf of the private minority institutions, it was submitted that on the correct interpretation of the various provision of the constitution under Article 29 and 30 the minority institutions have the rights to establish and administer educational institutions of their choice. The use "of their choice" article 30(1)shows that the religious and linguistic minorities could establish and administer any type of educational institution.

It was argued that such an educational is invariably established primarily for the benefit of the religious and linguistic minority and should be open to such institutions to admit students of their choice article 30(2)was meant to ensure that minority institutions would not be denied aid on the ground that they were managed by minority institutions.

The facts of the case were that the 1st petitioner is Dr T M A Pai foundation which is a Trust registered under the trust act. Second petition is Manipal institute technology which is an educational institution owned and administered by the first petitioner trust. Third petitioner to the 6th petitioner are the trustees. The Academy of general education was founded by Dr TMA PAI became the Registrar for life according to paragraph 29 of the memorandum of association. Other large institutions were established by the academy.

The governor of the state put a law into decree to the ordinance of the Karnataka educational institutions (Prohibition of capitation fee) ordinance 1984 asking the validity of the Karnataka and the state government dated 19 July 1984 fixing the intake of the second petitioner. The plea of the petitioner is that the Act is violative of article 30 of the constitution which confer fundamental rights on the linguistic and religious minorities to establish and administer educational institute of their choice.

The plea of the state was put forward in the statement of objection. The 2nd petitioner institution was not established by a minority for the benefit of Konkani speaking people. As stated by the petitioners the college was established by the Manipal engineering college trust in 1957which was created by Academy of General education. As mentioned by the 2nd petitioner college and the administration thereof along with other institutions stand vested in the 1st petition foundation.

As far as the validity of the act is concerned, practice of collecting capitation fee was destructive of higher values and amounted to commercialization of education and exploitation of the situation. Therefore the provisions of the act are not violative of article 30,14 and 29 of the constitution.

Some questions were asked regarding the misunderstanding between the petitioners and the respondent:

1. Whether the petitioner are entitled to the protection of Article 30 of the constitution.
2. If the answer to question 1 is yes then whether all or partly of the provisions of the Act are unconstitutional being inconsistent with Article 30.

An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers.

More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students.

In as much as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.

It is a fundamental right to set up educational institution as:
Article19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article19(6),

Article 30(1)in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice institution for religious purposes, which would include an educational institution .

In the case it was discussed, though education do not come under the definition.

Article 30(1) uses the term 'linguistic' or ;religious' minorities. The word 'or' means that a minority may either be linguistic or religious and it does not have both- are religious minority as well as linguistic minority. It is sufficient of it is one or the other or both.

A linguistic minority of Art.30(1) is one which has a separate spoken language. It is not necessary that language should also have a separate script. India has a number of languages will constitute minority to claim protection of Art. 30(1).

The constitution uses the term 'minority' without defining it. In the The Kerala Education Bill the Supreme Court opined that while it is easy to say that minority means a community which is numerically less than 50 per cent, the important question is 50 per cent of what? Should it be of the entire population of India, or of a State , or a part therefore?. It is possible that a community may be in majority in a State.

India is a land of diversity-of different castes, peoples, communities, languages,religions and culture. Although the citizens enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty lines. The state, with its limited resources, was unable to fully develop the genius of people, very often their impersonal education that is imparted by the state was devoid of adequate material lcontent

In that scenario, private educational institution established by educationists, philanthropists and religious and linguistic minorities, which provide quality education was imparted with unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education.

A number of petitions were filled by management of minority and non-minority educational institutes. Their contention that the government must get off their back,and that they should be allowed to provide quality education uninterrupted byunnecessary rules and regulations, laid down by the bureaucracy for its own self-importance.

The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking toimpart quality education for the benefit of the community for whom they were established, and others, have filed the writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by yrules and regulations that unnecessarily impinge upon their autonomy.

On behalf of all these institutions, the petitioners submitted that the Constitution provides a fundamental right to establish and administer educational institutions. With egard to non-minorities, the right was stated to be contained in Article 19(1) the Supreme Court said that fundamental right given to all minorities under Article 30(1) to establish and administer educational institutions of their choice does not militate against the claim of the State to insist that in granting aid the state may not prescribe reasonable regulations to ensure the excellence of the institutions.

Accordingly, the court in this case upheld certain conditions designed to give protection and security to the ill-paid teachers who were rendering service to the Nation and to protect backward classes as permissible restrictions which the State can impose on minorities as a condition for granting aid to their educational institutions.

In St Xaviers College v/s State of Gujarat
The facts of the case are, a Jesus Society of Ahmedabad, was running the St Xavier College.,certain amendments in Gujarat University act, 1949, violated their right under Article 30.The court held that the provisions of the Gujarat University act, 1949, abriged the right of the minority to administer the educational institution of their choice and, therefore, did not apply to minority institutions.

The Court further held that , autonomy in administration means the right to administer effectively the affairs of the institutions. The choice in the personnel of management is a part of the administration. It also includes right to choose teachers of its choice.

The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood here in above.

The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.

Conclusion
Article 29 and 30 plays a major role in interpreting the extent of the right of minorities to establish and administer educational institution. In TMA Pai decision specifically dealt with the issue whether in order to determine the existence of a religious or linguistic minority in relation to article 30, the state or the country as a whole is to be taken as unit.

The position with regard to the religious minority is similar since both religious and linguistic or religious minorities within a meaning of Art 39 would be one and the same either in relation to a state or central legislation. Article 30(1) uses the terms linguistic or religious minorities. This means that it may be both. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap.

Written By: Sibonginkosi Kositina of Lovely Professional university.