Latest Legal Position

No Special Bench of the Supreme Court

1. No Special Bench of the Supreme Court of India is at present re-examining the import and implications of Article 30 of the Constitution. Such a Special Bench was constituted in January 1997 by the then Chief  Justice of India A.M. Ahmadi. After his retirement on 31 March, 1997, the Special Bench did not have any further hearing of the case. In July 1997, on the retirement of Justice K. Ramaswami the Special Bench got dissolved and has never been reconstituted since then.

2. During its few hearings until 31.3.1997, the Special Bench had not issued any order or instructions for the stay or abeyance of the law on the subject as then in force. The said law, therefore, remains wholly unchanged. There is no judicial ban whatsoever on adhering to and pursuing the dictates of Article 30 of the Constitution as per the settled law.

Latest Ruling of the Supreme Court

1. Much later, on 7th September, 1998, a Division Bench of the Supreme Court has delivered a very significant judgement on Minorities' Educational Rights in the case of N. Ammad vs Manager, Emjay High School (JT 1998 (6) SC 221)

2.This latest Ruling of the Supreme Court of India has emphatically held as follows:

(i) A Constitution Bench of seven judges of this Court in Re Kerala Education Bill case - AIR 1958 SC 956 has laid down the following proposition:

"This right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right guaranteed by the Constitution,

(ii) The aforesaid proposition was approved by another Constitution Bench of this Court in Sidhrajbhai Sabbai vs. the State of Gujarat (AIR 1963 SC 540) and also by a 9-Judge Bench of this Court in Ahmedabad St. Xaviers College Society vs. State of Gujarat (1975 1 SCR 173). Thus the legal position adumbrated in Re Kerala Education Bill (supra) remains unchanged now.

(iii) For a Minority Educational Institution, the management's right to choose qualified persons (for staff) is "well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative Act or executive rule except for fixing up the qualifications and conditions of service for the post."

(iv) As regards a Minority Educatioral Institution already in existence, when the Government declares it as a Minority institution it merely recognizes "a factual position that it was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration." (Source: NCM Newsletter, Vol. III, 1999)

Madras High Court On Establishment of Technical Institutions

All India Council for Technical Education, Petitioner v. Sri Devi Karumari Amman and others, Respondents.

S.S. SUBRAMANI, J.

All India Council for Technical Education Act (52 of 1987), Section 10- Establishment of Training Institute - Application for - State Government has to consider each and every application independently on merits as to desirability of establishing a college in proposed location - State Government cannot take a policy decision and refuse permission merely on that ground. (Source: AIR 1999 Madras 206)

Karnataka High Court On Establishment of Medical College

Al-Mahmood Education Society, Shimoga and etc., Petitioners v. State of Karnataka and others, Respondents.

G.C. BHARUKA, J.

Constitution of India, Article 226 Educational institution - New Medical College -- Establishment of - Grant of essentiality certificate required under Regulation 1993 – State Government cannot refuse it on policy consideration simpliciter and required to consider qualifying criteria provided under Regulations in each case.

Indian Medical Council Act (102 of 1956), Sections 10-A, 33.   (Source: AIR 1999 Karnataka 223)