R.M.SAHAI, J. - (1.) Does the right to establish and administer a minority institution of their choice guaranteed under Art.30 (1) of the Constitution extends to or includes the right to reserve seats for the students of minority community in a State financed or aided institution is the issue of some importance due to paucity of any judicial precedent on this aspect which has been described by American jurists as reverse discrimination. The issue has arisen as many students who appeared in the entrance test held for admission to B.Tech. and B.Sc. (Agr.) by Allahabad Agricultural Institute a premier and renowned institute of the country imparting education in agricultural science founded by an American Christian Philanthropist, Dr. Sam Higginbottom, as far back as 1911, were denied admission even though they secured high percentage of marks in the competitive test held by the Institute due to admission policy of reserving 50% seats, for, B'Church sponsored students from the whole of country of which at least 1/5th shall be from Uttar Pradesh 40% of U.P. Domiciled including Church sponsored coming on merits, 5% B'from other States including foreign students but excluding Uttar Pradesh and Church sponsored and 5% for "tribals". Although the scope and ambit of educational right guaranteed to a citizen under Art.29(2) and the right of religious or linguistic minority to establish and administer educational institution of their choice under Art.30(1) has been explained in various decisions of the Hon'ble Supreme Court but there is direct decision on the issue if a minority institution is entitled to reserve seats for students of its own community in the purported exercise of power to administer an institution of its own choice.
(2.) For convenience the two sub-articles are reproduced below : "Art.29(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." "Art.30(1) : All minorities, whether based on religion or language, shall have the right to establish and administer educational institute of their choice." Historically Art.29(2) as recommended by the Minority sub-committee and approved by the Advisory committee proposed a provision which read as under : "No minority, whether of religion community or language, shall be deprived of its rights or discriminated against in regard to the admission into State Educational Institute-" Since such a provision coupled with Art.30(1) would have given rise to apprehension as was argued and it would have resulted in destroying the secular character of the educational institution which are temples of learning consequently despite Arts.14 and 15 which guarantees equality, Art.29(2), as it stands, was incorporated to obviate any misgiving as an exception to Art.30(1). Its scope was explained in the very first decision which came up before Hon'ble Supreme Court in State of Madras v. Smt. Champakam Dorairajan, AIR 1951 SC 226 and what was described as communal Government order reserving seats in Medical College on basis of caste was held to be violative of Art.29(2). It was held "The right to get admission into any educational institution of the (sic) to mentioned in Cl. (2) is a right which an individual citizen has (as) a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right". This led to First Constitutional amendment and an exception to Art.29(2) was grafted in shape of Art.15(4), what needs mention is that even though the Constitution was amended but it attempted to carve out an exception in favour of socially and educationally backward class or Scheduled Castes or Tribals only for their advancement in keeping with the Constitutional ideal of ensuring reservations for depressed classes for sometime. For others including Hindus, Muslims, Anglo Indians and Christians, there was no change. Since what was struck down in Smt. Champakam's case (AIR 1951 SC 226) (Supra) was a Government order and not any action of a minority institution itself it occasioned the submission that Art.30(1) should not be construed in a manner which may destroy the very purpose for which it was incorporated in the Constitution and is described as cherished right of minority. Passionate appeal was made to confine enforceability of guarantee under Art.29(2) to educational institutions other than those established under Art.30(1). Apprehension was expressed on non-admission of even one student of the minority in an institution established and administered by minority if the merit formula was adhered to, Emphasis was laid on word 'choice' used in Art.30(1) and it was stretched to extend to admission of own community. Inspiration was drawn by picking up sentences, shorn out of their context, from the judgments of Hon'ble Court in different decisions for instance, "the real import of Art.29(2) and Art.30(1) seems to be that they clearly contemplated a minority institution with sprinkling of outsiders admitted to it", in AIR 1958 SC 956 the famous Kerala Educational Bill was putforth as laying down the law that students other than minority could be few only. Similarly the observations, "that the right guaranteed under Art.30(1) was in terms absolute and the right could not be whittled down by so called regulative measures conceived in the interest not of the minority educational institution but of the public or the nation as a whole.... the right guaranteed by Art.30 (1) will be put a "teasing illusion" a promise of unreality "in Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540 was pressed time and again as supporting the right to reserve seats for minority community. What was lost sight in the zest of argument, however, was the well established principle which has been explained by Hon'ble Supreme Court, thus, in AIR 1983 SC 1246 Sreenivasan General Traders v. State of Andhra Pradesh "every judgment must be read as applicable to particular facts proved or assumed to be proved since the generality of the expressions which may be found are intended to be expositions, of the whole law but governed and qualified by the particular facts of the case in which such expressions are found". However, the issue that calls for adjudication is if Government aided minority institutions are constitutionally competent to preclude students of majority community or community other than that which established the institution by reserving seats for students of their own community in purported exercise of power under Art.30(1) to educate their own children notwithstanding Art.29(2).
(3.) "Religion is a realm in which faculties beyond reason and experience removed from the public sphere prove central to merit conception of the values at stakes". But religious autonomy in education as articulated by Art.30 expressed in absolute terms unheeded with any restrictions is a mandate of religious voluntaries in faith and belief, but not in its actions and practice which in a secular democracy must carry the impress of secular purpose and effect. That is why an educational institution whether established or administered by majority or minority has been prohibited from denying admission to anyone on ground of religion, caste etc. Any effort to create pervasively sectarian doubt look should not be contenanced on public funds. When the word 'minority' as proposed in the constitution bill was dropped from Art.29 and was replaced with word, 'citizen' it was deliberately done not to destroy absolutism of Art.30 but to inhibit any institution majority or minority from acting in a manner which may be destructive of secular philosophy which pervades the Constitution. Therefore, the constitutional concept of religious autonomy in education in Art.30 has to be balanced with the constitutional guarantee under Art.29(2). While making any attempt to constitutionalise the relationship between the two broad ideals projected by these Articles what is important to bear in mind is that even though the educational and cultural rights guaranteed under Arts.29 and 30 have been generally described as protection of interest of minorities yet Art.29 having used the word citizen both in Cls. (1) and (2) it is a right guaranteed to both majority and minority. "Article 29 confers the fundamental right on any section of the citizens which include the majority section" St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389. Since Arts.29(2) and 30(1) operate in same field namely, educational institutions, the right guaranteed to minorities under Art.30(1) to establish and administer educational institutions of their choice cannot be read in isolation, and they have to be interpreted in a manner that one does not destroy the right of other while maintaining their basic characteristic of absolutism inherent in them. They must be tested on touchstone of human values. When the choice to establish and administer institution was guaranteed it meant freedom of conscience and faith which could not be interfered directly or in directly. It was a mandate for linguistic and religious freedom but not for separation. Since phraseology of both the Articles is in absolute terms and if eighteen of them is expanded to the extreme, it is bound to clash with other it is imperative to evolve way out giving full play to both without doing violence to any. A absolutism of Art.29(2) irrespective of Arts.14 and 15(1) was explicitly and clearly brought out in Champakam's case (AIR 1951 SC 226) (supra). To what extent it was watered down by Legislature has already been narrated. The principle was retired even in State of Bombay v. Bombay Educational Society, AIR 1954 SC 561, which probably was the first case in which Hon'ble Court was called upon to balance the two rights guaranteed by Art.29(2) and Art.30(1). It was concerned with a circular issued by Government directing schools imparting education in English medium not to admit students other than anglo Indian and citizen of non-Asiatic descent. The Hon'ble Court while maintaining right of minority under Art.30(1) to determine medium of instruction in which education could be imparted to children of own community struck down the order of Government as, the laudable object of the impugned order does not obviate the prohibition of Art.29(2) because the effect of the order involves an infringement of this fundamental right and that effect is brought about by denying admission only on ground of language." The more emphatic pronouncement came in the Kerala Education Bill case (AIR 1958 SC 956) (supra) where the Hon'ble Court held that the right of the minority to conserve its language, script or culture under Art.29(1) of the right to maintain and administer a minority institution under Art 30 was "subject to Cl. (2) of Art.29 which provides that 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". The word choice used in Art.30(1) was emphasised in Sidhraj Bhai case (AIR 1963 SC 540) (supra) and the order of Government to reserve seats to its nominee in training college run by a minority institution was struck down as beyond regulative measure. But it cannot be taken assistance for extending the word choice to reserve seats for own community. The expression established and administer used in Art.30(1) came up for elucidation in St. Xaviers College's case (AIR 1974 SC 1389) (supra). Its various phases were highlighted in separate judgments of Hon'ble Judges. But none of them recongised the right to admit students of minority community or to reserve seats for them so as to exclude others. It was held by every Hon'ble Judge that right to establish and administer guaranteed under Art 30(1) was an absolute right. But like any other fundamental right it was subject to reasonable regulation and control. Justice Dwivedi observed at page 1463". A glance at the context and scheme of Part III of the Constitution would show that the Constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. The associate Art.29(2) imposes one restriction on the right in Art.30(1). No religious or linguistic minority establishing and administering an educational institution which receives aid from the State funds shall deny admission to any citizen to the institution on grounds only of religious, race, caste, language or any of them. The right to admit a student to an educational institution is admittedly comprised in the right to administer it. This right is partly curtailed by Art.29(2)." In All Bihar Christian School v. State of Bihar, AIR 1988 SC 305, right of State to regulate a minority institution for excellence etc. where public fund was paid, observed, "on the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized useful members of society, and to ensure that the public funds disbursed to the minority, institutions are properly utilised for the given purpose. On the one hand the State has to respect and honour minority rights under Art.30(1) in the matter of establishing and carrying of administration of institution of their choice. In order to recognise these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Art.30(1) of the Constitution.";