Introduction

India is a land of diversity, of different castes, peoples, communities, languages, religions and culture.
Although these people enjoy complete political freedom,1 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 genius 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 penpushers, as a result of which sufficient jobs are not available.
Conflicting emotions and policies characterize contemporary societies. On one hand, one finds
prevalence of homogenizing forces of market economy while on the other, values of tolerance of
differences and individual/collective freedom are advocated. The same language of democracy, equality,
and social justice are used for promoting both, inclusion and exclusion of people in social categories. The
ethos of citizenship is lost in minority-majority segregation. 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 educationists, philanthropists and religious and linguistic minorities. This
paper basically deals with the position of minority educational institutions after the judgment2 of the
Honourable Supreme Court in the much celebrated case of T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors3 . (in Short, the „Pai Foundation case’).

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 with regard to the establishment and
administration of the educational institutions vis-à-vis other educational institutions. Article 30 is a
special right conferred on the religious and linguistic minorities because of their numerical handicap and
to instil in them a sense of confidence. In the St Xavier's College case, the Supreme Court has rightly
pointed out, "The whole object of conferring the right on the minorities under Article 30 is to ensure
that there will be equality between the majority and the minority. If the minorities do not have such
special protection they will be denied equality."[3]

While upholding these rights, the Supreme Court has, in the TMA Pai case, also endorsed the concept
that there should be no reverse discrimination and opines that "the essence of Article 30(1) is to ensure
equal treatment between the majority and the minority institutions. No one type or category of
institution should be disfavoured or, for that matter, receive more favourable treatment than another.
Laws of the land, including rules and regulations, must apply equally to the majority institutions as well
as to the minority institutions."[4]

The Supreme Court has time and again, in many judgements, ruled that minority status can be decided
only by taking the state as a unit. It has reasoned that since 'religious' and 'linguistic' are mentioned at
the same time in Article 30 of the constitution, and since the states were carved out in India by taking
language as the criterion, the classification of 'minority' cannot be based on some other principle.
Accordingly, a state government can confer minority status on an educational institute only after
considering the socio-economic backwardness of the minorities in that state. This is the reason why,
even though 90 per cent of the educational institutions (aided or unaided) in Kerala are run by person(s)
belonging to the minority communities, the same have not been accorded minority status.