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QUESTIONS POSED IN T.M.A. PAI FOUNDATION :

26. In T.M.A. Pai Foundation (supra), the Bench framed the following questions:

1. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution" of India?
2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?

49. The Court, however, laid emphasis that in professional education merit should be the criteria.

50. With a view to appreciate the extent to which the Scheme formulated in Unni Krishnan was not found favour with T.M.A. Pai Foundation (supra), we may set out the observations of this Court in T.M.A. Pai Foundation (supra) as follows:

1. Establishment of Educational Institutions All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos. 10 &

63. The States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh enacted statutes prohibiting collection of capitation fee and regulating admission in professional colleges. In terms of the provisions of the said Acts, the management of the professional colleges is prohibited from charging any fee other than fee determined under the said Acts. The right of the minorities under Article 30 of the Constitution, however, stands protected thereby. The respective State Governments enforced the said statutes in respect of self-financing private institutions, minorities or otherwise. They further issued various Government orders in exercise of their powers under Article 162 of the Constitution of India after, the judgment in T.M.A. Pai Foundation. The University Grants Commission, the A.I.C.T.E. and the Medical Council of India, issued provisional/ad hoc guidelines covering the same subject purported to be in terms of the provisions of the principal statutes governing the field in the light of the judgment of this Court in T.M.A. Pai Foundation. The State Governments also in terms of the observations made by this Court issued various orders or adopted resolutions providing for enforcement of their reservation policy as also determining the fee structure.

155. The dictum of the court in St. Stephen vis-a-vis T.M.A. Pai Foundation must be read in that context. It cannot be said as a matter of legal proposition that in each and every case the minority educational institutions would be entitled to fill up more than 50% of the seats from amongst the students of their choice and that too irrespective of merit. The fact that even students belonging to minority community take admission in colleges rim or aided by the State or other private unaided colleges cannot be lost sight of. On taking into consideration all the relevant criteria only the percentage can be worked out. It would be, in my considered opinion, wrong to compare the unaided institutions always with aided institutions. St. Stephen should be understood in proper perspective. What is explained in T.M.A. Pai (supra) is that there cannot be any fixed percentage. Each case will have to be considered on its own merit. Need of the institution should be the prime concern. Percentage will have to be worked out having regard to the need only.