T.M.A.

Pai foundation vs State of Karnataka

PROJECT SUBMITTED IN THE FULFILMENT OF THE COURSE FOR

CONSTITUTION LAW FOR ATTAINING THE DEGREE OF B.B.A.LL.B (HONS.)

PROJECT SUBMITTED TO: -

Prof. Dr. Anirudh Prasad
PROFESSOR OF LAW
PROJECT SUBMITTED BY:- SATYANAND
FIFTH SEMESTER
ROLL NUMBER – 2041
B.B.A. LL.B. (HONS.)

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001
ACKNOWLEDGEMENT

The present project on “T.M.A.Pai foundation vs State of Karnataka” has been able to get
its final shape with the support and help of people from various quarters. My sincere thanks go
to all the members without whom the study could not have come to its present state. I am
proud to acknowledge gratitude to the individuals during my study and without whom the
study may not be completed. I have taken this opportunity to thank those who genuinely helped
me.

With immense pleasure, I express my deepest sense of gratitude to Prof. Dr. Anirudh Prasad
Faculty for Constitution law, of Chanakya National Law University for helping me in my
project. I am also thankful to the whole Chanakya National Law University family that
provided me all the material I required for the project. Not to forget thanking to my parents
without the co- operation of which completion of this project would not had been possible.

I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place.

Satyanand

Roll No.: 2041

5th semester

Course:
B.B.A.LL.B.

3
DECLARATION BY THE CANDIDATE

I hereby declare that the work report in that B.B.A.LLB(Hons.) project report entitled
“T.M.A Pai foundation vs State of Karnataka” submitted at CHANAKYA NATIONAL
LAW UNIVERSITY is an authentic record of my work carried out under supervision of
Prof. Dr. Anirudh Prasad . I have not submitted this work elsewhere for any other degree
or diploma. I am fully responsible for my project report.

SIGNATURE OF THE CANDIDATE

NAME OF THE CANDIDATE: SATYANAND

ACKNOWLEDGEMENT

The present project on “T.M.A.Pai foundation vs State of Karnataka” has been able to get
its final shape with the support and help of people from various quarters. My sincere thanks go
to all the members without whom the study could not have come to its present state. I am
proud to acknowledge gratitude to the individuals during my study and without whom the
study may not be completed. I have taken this opportunity to thank those who genuinely helped
me.

With immense pleasure, I express my deepest sense of gratitude to Prof. Dr. Anirudh Prasad
Faculty for Constitution law, of Chanakya National Law University for helping me in my
project. I am also thankful to the whole Chanakya National Law University family that
provided me all the material I required for the project. Not to forget thanking to my parents
without the co- operation of which completion of this project would not had been possible.

I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place.

Satyanand

Roll No.: 2041

5th semester

Course:
B.B.A.LL.B.

3
 CONTENTS

1. INTRODUCTION..................................................................5

AIMS AND OBJECTIVES........................................................6

RESEARCH METHODOLOGY................................................6

SOURCES OF DATA...............................................................6

METHOD OF WRITING..........................................................6

LIMITATION OF THE STUDY................................................6

2. FACTS OF THE CASE..........................................................7

3. JUDGEMENT........................................................................8

4. POINTS OF THE JUDGEMENT…………………...……..12

5. CONCLUSION………………………………….…………16
INTRODUCTION

Indian constitution provides reservation in public sector education and employment as a legal form of
affirmative action designed to provide greater opportunities to communities and social groups
traditionally deprived and excluded. The reservation under Constitution is provided in three manners:
(1) Reservation in employment in services under the government, (2) Reservation in educational
institutions and (3) Reservation of seats in legislature.
The Supreme Court ruling on reservation in private higher education institutions 1 and the
consequent moves towards enabling legislation in this regard have further stoked the fire.

2
The subject of my study T.M.A Pai Foundation v. State of Karnataka, is a landmark
judgement in terms of minority's right for education . The judgement delivered on October 31,
2002 by 11 judges in the case of T.M.A. Pai Foundation & Ors. vs. State of Karnataka &
Ors. (Pai Foundation case) with multiple opinions - a majority opinion by the 5 judges - G.B.
Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi & Arijit Pasayat with a
separate but concurring opinion by the Chief Justice V. N. Khare, and three separate opinions
by Ruma Pal,  S.N. Variava and Ashok Bhan and Syed Shah Mohammed Quadri. The other is
the judgement delivered on August 14, 2003 by a constitution bench that interpreted the Pai
Foundation judgement in the case of Islamic Academy of Edn. & Anr. vs. State of Karnataka &
Ors (Islamic Academy of Education case), again with multiple opinions - a majority opinion by
the 4 judges - CJI V. N. Khare, S. N. Variava, K. G. Balakrishnan & Arijit  Pasayat and a
separate opinion by S.B. Sinha

The court held that the state governments and universities cannot regulate the admission policy
of unaided educational institutions run by linguistic and religious minorities, but state
governments and universities can identify educational qualifications for students and make rules
and regulations to maintain academic principles.

1
T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481 And P.A. Inamdar Vs. State of Maharashtra
2005 AIR (SC) 3226)
2
T.M.A Pai Foundation v. State of Karnataka SC 377 (11 August 1995)

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AIMS AND OBJECTIVES

1) The researcher tends to extensively study the Judgment of this case.

2) The researcher tends to analyze the provisions related to minority education and rights.

RESEARCH METHODOLOGY

The researcher relied on the doctrinal method of research to complete this project.

SOURCES OF DATA

The researcher will be relying on both primary and secondary sources to complete the project.

1. Primary Sources: Acts & Statutes

2. Secondary Sources: Case laws, websites, books etc.

METHOD OF WRITING

The method of writing followed in the course of this research paper is primarily analytical.

LIMITATION OF THE STUDY

The Researcher as a student has completed the project. He has access to a limited area and having a
limited time.

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FACTS OF THE CASE

1. India is a land of diversity of different castes, peoples , communities , languages, regions

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 the impersonal
education that is imparted by the state was devoid of adequate material content .
2. 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 .
3. A number of petitions were filled by management of minority and non-minority
educational institutes . There contention that the government must get off their back, and
that they should be allowed to provide quality education uninterrupted by unnecessary
rules and regulations, laid down by the bureaucracy for it's 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 to impart quality education for
the benefit of the community for whom they were established, and others have filled the
writ petitions and appeals asserting their right to establish and administer educational
institutions of their choice unhampered by rules and regulations that unnecessarily
impinge upon their autonomy.
4. On behalf of all these institutions , the petitioners submitted that the constitution provides
a fundamental right to establish and administer educational institutions. With regard to
non-minorities , the right was stated to be contained in Article 19(1)(g) and/or Article 26
while in case of linguistic and religious minorities , the submission was that this right was
enshrined upon by Article 30.

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 JUDGEMENT

The Supreme Court in its judgement on August 12, 2005 ruled on the following issues in
relation to minority and non-minority unaided higher education institutions.
 reservation policy,

 admission policy,

 fee structure,

 regulation and control by the state and

 the role of committees dealing with admission and fees,

Here's a summary of the judgement quoting relevant excerpts of the judgement (emphasis mine). 

Reservation policy
Neither the policy of reservation can be enforced by the State nor any quota or percentage of
admissions can be carved out to be appropriated by the State in a minority or non-minority
unaided educational institution. Minority institutions are free to admit students of  their own
choice including students of non-minority community as 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 institution status is lost.

So far as appropriation of quota by the State and enforcement of its reservation policy is
concerned, we do not see much of difference between non-minority and minority unaided
educational institutions. The State cannot insist on private educational institutions which receive

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no aid from the State to implement State's policy on reservation for granting admission on lesser
percentage of marks, i.e. on any criterion except merit.

Merely because the resources of the State in providing professional education are limited, private
educational institutions, which intend to provide better professional education, cannot be forced
by the State to make admissions available on the basis of reservation policy to less meritorious
candidate.  Unaided institutions, as they are not deriving any aid from State funds, can have their
own admissions if fair, transparent, non-exploitative and based on merit.

A limited reservation of seats, not exceeding 15%, in our opinion, may be made available to
NRIs depending on the discretion of the management subject to two conditions.  First, such seats
should be utilized bona fide by the NRIs only and for their children or wards.  Secondly, within
this quota, the merit should not be given a complete go-by.  The amount of money, in whatever
form collected from such NRIs, should be utilized for benefiting students such as from
economically weaker sections of the society, whom, on well defined criteria, the educational
institution may admit on subsidized payment of their fee.   To prevent misutilisation of such
quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to
be framed.  So long as the State does not do it, it will be for the Committees (constituted pursuant
to the judgement in the Islamic Academy of Education case) to regulate.

Admission policy
Up to the level of undergraduate education, the minority unaided educational institutions enjoy
total freedom. Presumably this means up to and including undergraduate education in non-
technical or non-professional courses, since the Court treats technical and professional education
differently below. However, different considerations would apply for graduate and post-graduate
level of education, as also for technical and professional educational institutions. Such education
cannot be imparted by any institution unless recognized by or affiliated with any competent
authority created by law, such as a University, Board, Central or State Government or the like. 
Excellence in education and maintenance of high standards at this level are a must.  To fulfill
these objectives, the State can and rather must, in national interest, step in.  The education,
knowledge and learning at this level possessed by individuals collectively constitutes national
wealth. In minority educational institutions, aided or unaided, admissions shall be at the State

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level.  Transparency and merit shall have to be assured. The State can also provide a procedure
of holding a common entrance test in the interest of securing fair and merit-based admissions and
preventing mal-administration.

Whether minority or non-minority institutions, there may be more than one similarly situated
institutions imparting education in any one discipline, in any State. The same aspirant seeking
admission to take education in any one discipline of education shall have to purchase admission
forms from several institutions and appear at several admission tests conducted at different
places on same or different dates and there may be a clash of dates.  If the same candidate is
required to appear in several tests, he would be subjected to unnecessary and avoidable
expenditure and inconvenience.  There is nothing wrong in an entrance test being held for one
group of institutions imparting same or similar education.   Such institutions situated in one State
or in more than one State may join together and hold a common entrance test or the State may
itself or through an agency arrange for holding of such test. Out of such common merit list the
successful candidates can be identified and chosen for being allotted to different institutions
depending on the courses of study offered, the number of seats, the kind of minority to which the
institution belongs and other relevant factors. Such an agency conducting Common Entrance
Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This
would better ensure the fulfillment of twin objects of transparency and merit. 

Regulation and Control by the State

The judgement in the Pai Foundation Case is unanimous on the view that the right to establish
and administer an institution, the phrase as employed in Article 30(1) of the Constitution (Right
of minorities to establish and administer educational institutions), comprises of the following
rights: 
(a)to admit students; 
(b) to set up a reasonable fee structure; 
(c) to constitute a governing body; 
(d) to appoint staff (teaching and non-teaching); and 
(e) to take action if there is dereliction of duty on the part of any of the  employees.

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A minority educational institution may choose not to take any aid from the State and may also
not seek any recognition or affiliation. Such institutions cannot indulge in any activity which is
violative of any law of the land. They are free to admit all students of their own minority
community if they so choose to do. (para 145, Pai Foundation)

Affiliation or recognition by the State or the Board or the University competent to do so, cannot
be denied solely on the ground that the institution is a minority educational institution. 
However, the urge or need for affiliation or recognition brings in the concept of regulation by
way of laying down conditions consistent with the requirement of ensuring merit, excellence of
education and preventing mal-administration.  For example, provisions can be made indicating
the quality of the teachers by prescribing the minimum qualifications that they must possess and
the courses of studies and curricula.  The existence of infrastructure sufficient for its growth can
be stipulated as a pre-requisite to the grant of recognition or affiliation.  However, there cannot
be interference in the day-to-day administration.  
The essential ingredients of the management, including admission of students, recruiting of staff
and the quantum of fee to be charged, cannot be regulated.

Role of Committees dealing with Admissions and Fees

The two committees for monitoring admission procedure and determining fee structure in the
judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at
protecting the interest of the student community as a whole as also the minorities themselves, in
maintaining required standards of professional education on non-exploitative terms in their
institutions. The suggestion made on behalf of minorities and non-minorities that the same
purpose for which Committees have been set up can be achieved by post-audit or checks after the
institutions have adopted their own admission procedure and fee structure, is unacceptable for
the reasons shown by experience of the educational authorities of various States.  Unless the
admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil
of unfair practice of granting admission on available seats guided by the paying capacity of the
candidates would be impossible to curb.
Non-minority unaided institutions can also be subjected to similar restrictions which are found
reasonable and in the interest of student community. 

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We expect the Committees, so long as they remain functional, to be more sensitive and to act
rationally and reasonably with due regard for realities.  They should refrain from generalizing fee
structures and, where needed, should go into accounts, schemes, plans and budgets of an
individual institution for the purpose of finding out what would be an ideal and reasonable fee
structure for that institution.

We make it clear that in case of any individual institution, if any of the Committees is found to
have exceeded its powers by unduly interfering in the administrative and financial matters of the
unaided private professional institutions, the decision of the Committee being quasi-judicial in
nature, would always be subject to judicial review.

SALIENT POINTS OF THE JUDGEMENT

From the majority judgment, the following Salient points were be culled out:

1. The term ‘minority’ in Art. 30(1) covers linguistic and religious minorities.

2. For the purpose of determining the ‘minority’, the unit will be the State and not the whole
of India. Thus, religious and linguistic minorities, which have been placed at par in Art. 30,
have to be considered State-wise.

3. Art. 30(1) gives religious and linguistic minorities the right to establish and administer
educational institutions ‘of their choice’. The use of the words ‘of their choice’ indicates
that even professional educational institutions would be covered by art. 30.

4. The right conferred on the minorities by Art. 30(1) is not absolute. It has to be read
subject to Art. 29(2) and other fundamental rights. Minority educational institutions thus
become divisible into two categories, viz.: aided educational institutions and unaided
educational institutions. The unaided institutions enjoy much greater autonomy than
aided institutions.

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5. Because of the interplay of Art. 29 (2) with Art. 30(1), an aided minority institution is
entitled to admit students belonging to the minority group. At the same time, it is also
required to admit nonminority students 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 Art. 29(2) are not subverted.
What would be a ‘reasonable’ extent, would vary from the type of institution, the courses
of education for which admission is being sought and other factors like educational needs.

It is for the concerned State Government to notify the percentage of non-minority

students to be admitted in the light of the above indicia.

6. Observance of inter se merit amongst the minority students could also be ensured.
In case of aided professional institutions, it can also be stipulated that passing of the
common entrance test held by the State agency is necessary to seek admission.

In case of non-minority students eligible to seek admission should normally be on the

basis of the common entrance test held for the remaining seats, admission by the State
agency followed by counseling wherever it exists.

7. A minority institution may have its own procedure and method of admission as well as
selection of students, so long as the procedure is fair and transparent.
The selection of students in professional and education colleges should be on the basis of
merit. The procedure adopted or selection made should not be tantamount to mal-
administration. Even an unaided minority institution ought not to ignore the merit of the
students for admission; otherwise it will fail to achieve excellence.

8. While giving aid to professional institutions, the aid giving authority may prescribe the
conditions on the basis of which admissions will be granted by the aided colleges by virtue
of merit, coupled with the reservation policy of the State qua non-minority students.

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 The merit may be determined on the basis of an entrance examination conducted by the
University or the State concerned. The authority concerned may devise other means also
to ensure that admissions are granted on the basis of merit in educational institutions.

9. Fees chargeable by unaided institutions cannot be regulated but no capitation fee can be
charged.
In aided institutions, fees can be so charged that there is no profiteering. Reasonable
surplus to meet cost of expansion and augmentation of facilities does not, however,
amount to profiteering.

10. All citizens have a right to establish and administer educational institutions under Arts.
19(1)(g) and 26(a).
The word ‘occupation’ in Art. 19(1)(g) covers such an activity. Such institutions are
however subject of Arts. 19(b) and 26(1), but this is subject to the right of the minority
institutions to admit minority students.

Such religious denominations or sections thereof as do not fall within the special
categories carved out in Art. 29(1) and 30(1) can establish and maintain religious and
educational institutions under Art. 26(a). The religious and linguistic minorities have an
additional right to establish educational institutions under Art. 30(1), in addition to Arts.
19(1) (g) and 26(a).

Thus, the Constitution recognizes the right of an individual or a linguistic minority or a

religious denomination or a religious minority to establish educational institutions.

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CONCLUSION

T .M .Pai decision specifically dealt with the issue whether in order to determine the
existence of a religious or linguistic minority in relation to Art. 30, the State or the country
as a whole is to be taken as the unit . Of the eleven judges constituting the Bench , Kripal
CJ delivered judgement . There were three concurring and two dissenting judgements on
the issue. The majority view was that language being the basis for the establishment of
different states , for the purpose of Art. 30, a “linguistic minority” will have to be
determined in relation to the state in which the educational institution is sought to be
established.The position with regard to the religious minorities within the meaning of
Art.30 would be one and the same either in relation to a state legislation or central
legislation .

Article 30(1) uses the terms 'linguistic' or 'religious' minorities .The word 'or' means that a
minority may either be linguistic or religious and that it does not have to be both- a
religious minority as well as linguistic minority. It is sufficient of it is one or other or both.
The constitution of India provides for special rights to both linguistic and religious
minorities “to establish and administer educational institutions of their choice” under
Article 30. Hence no such law can be framed as may discriminate against such minorities

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 with regard to the establishment and administration of the educational institution vis-à-vis
other educational institutions. Article 30 is a special right conferred on religious and
linguistic minorities because of their numerical handicap and to inspire in them a sense of
confidence .While upholding these rights ,Supreme court has in TMA Pai case,also
endrosed the concept that there should be no reverse discrimination and opines that “the
essence of Article 30(1) is to ensure equal treatment between majority and minority
institutions. No one type or category of institution should be disfavored or,for that
matter ,receive more favorable treatment than another. Laws of the land including rules
and regulation ,must apply equally to majority and minority institutions . Supreme court
has time and again , in many judgements, ruled that minority status can be decided only
by taking the state as a unit . The case of T.M.A. Pai foundation is a landmark case which
deals with the rights of minorities in India, which often I feel in this nation has not yet
been recognised .

BIBLIOGRAPHY

Books

Websites

www.scconline.com
www.manupatrafast.com
www.barandbench.com
www.livelaw.in www.lawoctopus.com
www.blog.ipleaders.in
www.theindianlawyer.in

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