'Unaided minority institutions can reserve all seats for their community'

NEW DELHI JULY 26. The Attorney-General, Soli Sorabjee, today submitted before the 11-Judge Bench of the Supreme Court that `unaided' minority educational institutions (MEIs) could reserve for admission upto 100 per cent of the seats for their communities.

Concluding his arguments before the Bench headed by the Chief Justice, B.N. Kirpal, Mr. Sorabjee said the right of administration and management under Article 30 of the Constitution also comprised the right to admit students of a particular community for which the institution had been established.

Referring to the arguments of some of the petitioners that MEIs could provide admission to students belonging to their community even upto 100 per cent, the Attorney General said such a proposition could be accepted if the process of admission was fair and transparent and not tainted by nepotism or other extraneous considerations.

To a question from the Bench whether an `aided' MEI could give weightage to its community, the AG said it would be permissible and not hit by Article 29 (2), if such a preference was rational and not disproportionate. He maintained that what was rational, whether it was disproportionate or not, would depend on the facts and circumstances prevailing in a particular MEI.

Mr. Sorabjee clarified that his view on the right of MEIs was not different from that of the Union Government and the submissions made by the Solicitor General, Harish Salve, earlier. He said he had never argued that the right under Article 30 was absolute as certain regulations could be imposed by the State.

When the Bench wanted to know the position regarding `aided' MEIs, Mr. Sorabjee submitted that once a MEI received aid from the State, it could not claim the right of entire reservation, but it could give preference to its community without excluding others.

The AG was of the view that aid could not be doled out on conditions that impair the autonomy of the MEI or adversely affected its right of management, which included the right to admit students belonging only to minority community.

Regarding applicability of Article 29 (2), he said if in the legitimate exercise of the fundamental rights under Article 30, a student of a community other than the particular minority community was not given admission because of non-availability of seats, there was no discrimination on ground of religion.

However, if seats were available but a student belonging to a non-minority community was denied admission because of his or her language or religion alone, then Article 29 (2) would be attracted, he added.

Further, if a student belonging to the same minority, which was running the MEI, was denied admission because of caste or race alone, Article 29 (2) was attracted.

The AG was also of the view that public funds in the form of aid could not be used by religious or linguistic minority schools for denying admission to the students of other communities.

Mr. Sorabjee said that it was for the court to consider whether receipt of aid, whatever its quantum, totally debars the MEI of its right to reserve seats for students of its community or the restriction or admission could be linked with the quantum of aid vis-a-vis total expenditure of the MEI.

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