B.N.KIRPAL,C.J. - (1.) INDIA is a land of diversity of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The State, with its limited resources and slow moving machinery, is unable to fully develop the genuis of the Indian people. Very often the impersonal education that is imparted by the State, devoid of adequate material content that will make the students self-reliant, only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
(2.) IT is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationinsts, philanthropists and religious and linguistic minorities. Their grievance is that the unnecessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their 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 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 to impart quality education for the benefit of the community for whom they were established, and others, have filed the present 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. The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of five-Judges. As the Bench was prima facie of the opinion that Art. 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen's College vs. University of Delhi (1992) 1 SCC 558 was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a Bench of seven-Judges. The questions framed were recast and on 6th February, 1997, the Court directed that the matter be placed before a Bench of at least 11 Judges, as it was felt that in view of the Forty-Second Amendment to the Constitution, whereby "education " had been included in Entry 25 of List III of the Seventh Schedule, the question of who would be regarded as a "minority " was required to be considered because the earlier case laws related to the preamendment era, when education was only in the State list. When the cases came up for hearing before an eleven-Judge Bench, during the course of hearing on 19th March, 1997, the following order was passed :- "Since a doubt has arisen during the course of our arguments as to whether this Bench would feel itself bound by the ratio propounded in - In Re : Kerala Education Bill, 1957 (1959) SCR 955 and the Ahmedabad St. Xaviers College Society vs. State of Gujarat, (1975) 1 SCR 173, it is clarified that this sized Bench would not feel itself inhibited by the views expressed in those cases since the present endeavour is to discern the true scope and interpretation of Art. 30(1) of the Constitution, which being the dominant question would require examination in its pristine purity. The factum is recorded. "
(3.) WHEN the hearing of these cases commenced, some questions out of the eleven referred for consideration were reframed. We propose to give answers to these questions after examining the rival contentions on the issues arising therein.;