T.M.A .Pai Foundation and Ors. v. State Of Karnataka and Ors.(AIR2003SC355).

T.M.A .PAI FOUNDATION v.STATE OF KARNATAKA, (AIR 2003 SC355). Decided on:31.10.2002 FACTS
1. India is a land of diversity-of different castes, peoples, communities, languages,

religions and culture. Although the citizens enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty lines. The state, with its limited resources, was unable to fully develop the genius of people, very often the impersonal education that is imparted by the state was devoid of adequate material content
2. In that scenario, private educational institutionestablished by educationists,

philanthropists and religious and linguistic minorities, which provide quality education was imparted with unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education.
3. A number of petitions were filled by management of minority and non-minority

educational institutes . Their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own selfimportance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
4. On behalf of all these institutions, the petitioners submitted that the Constitution

provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right was stated to be contained in Article 19(1)
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T.M.A .Pai Foundation and Ors. v. State Of Karnataka and Ors.(AIR2003SC355).

(g)2and/or Article 263, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 304

A BRIEF VIEW OF HISTORIC DECISIONS THAT PLAYS ITS RIGHTFUL ROLE ON THE RIGHTS OF MINORITIES
In re Kerala Education Bill,1the Supreme Court said that fundamental right given to all minorities under Article 30(1)6 to establish and administer educational institutions of their choice does not militate against the claim of the State to insist that in granting aid the state may not prescribe reasonable regulations to ensure the excellence of the institutions. Accordingly, the court in this case upheld certain conditions designed to give protection and security to the ill-paid teachers who were rendering service to the Nation and to protect backward classes as permissible restrictions which the State can impose on minorities as a condition for granting aid to their educational institutions.

In St Xaviers College v. State of Gujarat. The facts of the case are, a Jesus Society of Ahmedabad, was running the St Xavier College.,certain amendments in Gujarat University act, 1949, violated their right under Article 30.The court held that the provisions of the Gujarat University act, 1949, abriged the right of the minority to administer the educational institution of their choice and, therefore, did not apply to minority institutions. The Court further held that , autonomy in administration means the right to administer effectively the affairs of the institutions. The choice in the personnel of management is a part of the administration. It also includes right to choose teachers of its choice. The right, however, is subject to permissible regulatory measures.

AIR 1958 SC 956.

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Article 19(g) lays down :to practice any profession, or to carry on any occupation, trade or business. Artciclie 26 lays down: Freedom of conscience and free profession, practice and propagation of religion. Article 30 lays down:right of minorities to establish and administer educational institutions.

Article 30(1) lays down :All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
6 7

AIR 1970SC2079.

In Unni Krishnan, J.P. and Ors.v. State of Andhra Pradesh and Ors8 the court held that admission to all recognised private educational institutions particularly medical and engineering shall be based on merit, but 50 per cent of seats in all professional colleges be filled by candidates prepared to pay a higher fee. The court held that there shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be requirement of higher fee by payment students. The court evolved a scheme which would provide more opportunities to meritorious students who are unable to pay higher fee prescribed by Government for such colleges. In St. Stephen's College v. University of Delhi5-the validity of admission programme and the preference and the preference given to Christian students by the college was challenged as violated of Delhi University circulars for admission of B.A. and B.Com.Courses.St Stephens college is affiliated to Delhi University. The Supreme Court held that the college was not bound to follow the university circulars as it would deprieve the college of their minority character. The court also said that minority aided educational institutions may preserve 50 per cent seats for their community candidates and are entitled to give them preference in admissions as it is necessary to maintain the minority character of the institutions.The admission of other community candidates shall be done purely on the basis of merit. All the judgements imposed many regulations on minority education. On behalf of the private minority institutions, it was submitted that on the correct interpretation of the various provisions of the Constitution, and Articles 299 and 304 in particular, the minority institutions have a right to establish and administer educational institutions of their choice. The use of the phrase "of their choice" in Article 30(1) 4clearly postulated that the religious and linguistic
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T.M.A .Pai Foundation and Ors. v. State Of Karnataka and Ors.(AIR2003SC355).

minorities could establish and administer any type of educational institution, whether it was a school, a degree college or a professional college; it was argued that such an educational institution is invariably established primarily for thebenefit of the religious and linguistic minority, and it should be open to such institutions to admit students of their

(1992)1 SCC 558. (1993)1SCR594. Article 29 lays down: Protection of Interest of Minority.

choice. While Article 30(2) 10was meant to ensure that these minority institutions would not be denied aid on the ground that they were managed by minority institutions, it was submitted that no condition which curtailed or took away the minority character of the institution while granting aid could be imposed. In particular, it was submitted that Article 29(2)
11

could not be applied or so interpreted as to completely obliterate the right of the

minority institution to grant admission to the students of its own religion or language. It was also submitted that while secular laws relating to health, town planning, etc., would be applicable, no other rules and regulations could be framed that would in any way curtail or interfere with the administration of the minority educational institution. It was emphasized by the learned counsel that the right to administer an educational institution included the right to constitute a governing body, appoint teachers and admit students. It was further submitted that these were the essential ingredients of the administration of an educational institution, and no fetter could be put on the exercise of the right to administer. It was conceded that for the purpose of seeking recognition, qualifications of teachers could be stipulated, as also the qualification of the students who could be admitted; at the same time, it was argued that the manner and mode of appointment of teachers and selection of students had to be within the exclusive domain of the autochthones institution. On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the Constitution the provisions of the Constitution should be interpreted so that the right of the private nonminority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such
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private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions.

Article 30(2) lays downThe state shall not, granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority , whether based on religion or language.
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Article 29(2) lays down :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

CRITICAL ANALYSIS
CRITICAL ANALYSIS OF FIVE ISSUES RAISED DURING THE JUDGEMENT OF THE CASE. Among all the issues that were discussed by the petitioners five main issues were discussed broadly, which are of very important and thus made this case to be land mark case. They five main issues are:
I.

IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTION AND IF SO, UNDER WHICH PROVISION? It is a fundamental right to set up educational institution as Article19(1)(g)12 gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6),Article 2613gives the right to every religious denomination to establish and maintain an , Article 30(1)14, in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice institution for religious purposes, which would include an educational institution .

In the case it was discussed, though education do not come under the definition

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of the word occupationInCorpus JurisSecundumVolume LXVII15, it was analysed as The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh's case correctly interpret the expression "occupation" in Article 19(1)(g)
12

Article 19(1)(g) lays down :to practice any profession, or to carry on any occupation, trade or Article 26 lays down Freedom to manage religious affairs Article 30(1) laysdown:All minorities, whether based on religion or language, shall have the right to

business
13 14

establish and administer educational institutions of their chice

Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institutions.

I.

DOES UNNIKRISHNAN'S CASE8REQUIRE RECONSIDERATION? In Unnikrishnans case the court evolved a fee structure which would provide more opportunities to meritorious students who are unable to pay higher fee prescribed by Government for such colleges

In TMA Paifoundationv. State of Karnatakait was submitted that the cost incurred on educating a student in an unaided professional college was more than the total fee, which is realized on the basis of the formula fixed in the scheme. This had resulted in revenue shortfalls. This Court, by interim orders subsequent to the decision in Unni Krishnan's case, had permitted, within the payment seats, some percentage of seats to be allotted to Non-Resident Indians, against payment of a higher amount as

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determined by the authorities. Even thereafter, sufficient funds were not available for the development of those educational institutions. Another infirmity which was pointed out was that experience has shown that most of the "free seats" were generally occupied by students from affluent families, while students from less affluent families were required to pay much more to secure admission to "payment seats". This was for the reason that students from affluent families had had better school education and the benefit of professional coaching facilities and were, therefore, able to secure higher merit positions in the common entrance test, and thereby secured the free seats. The education of these more affluent students was in a way being cross-subsidized by thefinancially poorer students who because of their lower position in the merit list, could secure only "payment seats".

It was submitted by the counsel for the minority institutions that Unni Krishnan's case was not applicable to the minority institutions, but that notwithstanding this, the scheme to evolved had been made applicable to them as well.

Thus Unni Krishnan v, State of Andrapradesh16 needed reconsideration

16

(1993)1 SCC 645

The negative impact of the UnniKrishnans case was that (1) helped the privileged from richer urban families, even after they ceased to be comparatively meritorious, and (2) resulted in economic losses for the educational institutions concerned, and made them financially unviable. Data in support of this contention was placed on record in an effort to persuade this Court to hold that the scheme had failed to achieve its object.

Unni Krishnan's case, made it difficult, if not impossible, for the educational institutions to run efficiently. Thus, such restrictions cannot be said to be reasonable restrictions.

The scheme framed by this Court and thereafter followed by the governments was one that cannot be called a reasonable restriction under Article 19(6) of the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers

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are required to be paid properly, the case decision lead to improper running of the institution The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution. The scheme in Unni Krishnan's case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme the private institutions are

15

In Corpus JurisSecundum, Volume LXVII, the word "occupation" is defined as under:-"The word

"occupation" also is employed as referring to that which occupies time and attention; a calling; or a trade; and it is only as employed in this sense that the word is discussed in the following paragraphs

Undistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair or reasonable Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

In Minor P. Rajendran v. State of Madras and Ors.18 , it was observed at page 795 that "so far as admission is concerned, it has to be made by those who are in control of the Colleges, and in this case the Government, because the medical colleges are

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Government colleges affiliated to the University. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications."

In St. Stephen's College v. University of Delhi , which recognized and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decision of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students

The only requirement or control is that the rules for admission must be subject to the rules of the university as to eligibility and qualifications. The Court did not say that the university could provide the manner in which the students were to be selected.

Thus with the support of above argument it is confirmed that, the scheme relating to admission and the fixing of were not correct in the Unni Krishnan case and it was over ruled

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(1968)2SCR786

I. IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT REGULATIONS AND, IF SO, TO WHAT EXTENT?

In this issue the case of private unaided institutions and private aided institutions that are not administered by linguistic or religious minorities was discussed It was analysed by the court that The right to establish and administer broadly comprises of the following rights:(a) to admit students: (b) to set up a reasonable fee structure: (c) to constitute a governing body;

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(d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any employees

The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions is unacceptable restrictions

Conditions for regulation for admission in private unaided, non minorityintitutions, school & colleges was described widely in the case. All the condition which was laid down by the court was reasonable

I. IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR LINGUISTIC MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT - THE STATE OR THE COUNTRY AS A WHOLE?

This was the main issue which made an impact on regulation of minority educational institutions Article 30(1) uses the term linguistic or ;religious minorities. The word or means that a minority may either be linguistic or religious and it does not have both- a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both

A linguistic minority of Art.30(1) is one which has a separate spoken language. It is not necessary that language should also have a separate script. India has a number of languages will constitute minority to claim protection of Art. 30(1).20

The constitution uses the term minority without defining it. In re The Kerala Education Bill21, the Supreme Court opined that while it is easy to say that minority means a community which is numerically less than 50 per cent, the important question is 50 per cent of what? Should it be of the entire population of India, or of a Satate, or a part therefore?. It is possible that a community may be in majority in a State but in a minority in the whole of India. A community may be concentrated in a

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part of a State and may thus be in majority there, though it may be in minority in the State as a whole. If a part of a State is to be taken into consideration- a district, town, a municipality The Supreme Court did not however decide this point definitively. However, it had come to be accepted that minority is to be determined only in relation to the particular legislation which is being challenged. Thus, if a state law extending to the whole of a State population. In such a case, any community, linguistic or religious. Which is numerically less than 50 per cent of the entire State population, will be regarded as a minority for puroses of Art.30(1). Thus , the Christian community being 22 per cent of the population in Kerala is a minority there.

This view was altered in T.M.Pais case where the view of the majority was that the minority for the purpose of art. 30 cannot have different meanings depenging upon the legislation The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different states for the purposes of Article 30 a "linguistic minority" will have to be determined in relation to the state in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put at par in Article 30

20

D.A.V.College,Jullunder v. State of Punjab (1917) 2 SCC 269 AIR 1958 SC 956

21

Thus after the T.MA Paiscase , State is considered as the parameter for decision of the minority. This according to my opinion was the correct decision rendered by the court as it avoids the confusion, while State will be the correct medium to decide, who comes under the definition of minority under Art. 30

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The Court did not decide about the authority competent to decide about the minority status under Art.30. The National Commission for Minority Educational Institutions Act, 200422 now enables the Commission set up under the Act to decide all questions relating to t the staus of any institution as a minority educational institution and declare its status as such

I. TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY INSTITUTIONS TO ADMINISTER BE REGULATED?

The right to establish and maintain institutions of its choice is a necessary concomitant to the right conferred by Article 30. The right under Article 30 is notabsolute. Article 29(2) provides that, where any educational institution is maintained by the state or receives aid out of state funds no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them. The use of the expression "any educational institution" in Article 29(2) would refer to any educational institution established by anyone, but which is maintained by the state or receives aid out of state funds. In other words, on a plain reading, state-maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language.

But unaided institutes can have their own admissions provided it is fair, transparent, and non-exploitative and based on merit. Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article 29(1) gives the right to any section of the citizens residing in India or any part thereof, and having a distinct language, script or culture of its own, to conserve the same. Article 29(1) does not refer to any religion, even though the marginal note of the Article mentions the interests of minorities. Article 29(1) essentially refers to sections of citizens who have a distinct language script or culture, even though their religion may not be the same. The common thread that runs through Article 29(1) in language, script or culture, and not religion.

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There is close affinity between Art.29(1) and 30.. A minority community can best conserve its language, script or culture through educational institutions, for it is through education that the language and culture of a minority can be inculcated into the impressionable minds of the children of the community. The right to establish and maintain educational institutes of its choice by a minority, is therefore, concomitant to its right to conserve its distinctive language, script or culture, and what is envisaged by Art.30(1). But it does not mean that only such minority institution is entitled to the protection of Art.30 as is exclusively engaged in the conservation of minority language, script or culture, and that an institution of general education established by a minority cannot claim such protection.

The crucial phrase in art. 30(1) is of their choice and their choice cannot be limited merely to institutions seeking to conserve language, script or culture of the minorities. Choice of minority is not taken away if in an educational institution established by it, students of other communities are also admitted. In reality, under Art. 29(2), a stateaided educational institution, even though established and run by a minority, is obliged not to deny admission to members of other communities on grounds only of religion, race, caste and language.

22

Section 1(3): It shall be deemed to have come into force on 11th day of November 2004

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CONCLUSION
In T.M.Pai, decision specifically dealt with the issue whether in order to determine the existence of a religious or linguistic minority in relation to Art.30, the State or thr country as a whole is to be taken as the unit. Of the eleven judges constituting the Bench, Kripal C.J. delivered judgement for 6 of the judgements. There were three concurring and two dissenting judgements on the issue. The majority view was that language being the basis for the establishment of different States, for the purpose of Art 30, a linguistic minority will have to be determined in relation to the Sate in which the educational ibstitution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put in par in Art. 30. Therefore the test for determining who are linguistic or religious minorities within the meaning of Art.30 would be one and the samr either in relation to a state legislation or Central legislation. Article 30(1) uses the terms linguistic or religious minorities. The word or means that a minority may either be linguistic or religious and that it does not have to be both a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both. 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--vis other educational institutions. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to inspire in them a sense of confidence. 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. 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
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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. The case of T.M.A.PAI foundation is a landmark case which deals with the rights of minorities in India, which often I feel in this nation has not yet been recognised. We say India is a home to various cultures, different people and different languages. And we say that there is UNITY IN DIVERSITY. But in my personal opinion I dont feel so because still allot of people have been subdued under the hands of the most power handed majorities.

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BIBLIOGRAPHY
BOOKS

The Constitution Of India Constitutional Developments since Independence (Alice Jacob ed., Bombay: N.M. TripathiPvt. Ltd., 1975). D.D. Basu, Law of the Press (3rd ed., New Delhi: Prentice-Hall of India, 1996). Durga Das Basu, Shorter Constitution of India, 12th ed., Prentice Hall of India, New Delhi, 1990. J N Pandey, Constitutional Law of India, 34th ed., Central Law Agency, Allahabad, 1999. M P Jain, Indian Constitutional Law, 4th ed., Wadhwa& Co., Nagpur, 1994. P M Bakshi, The Constitution of India. Vol. I, Madras Law Journal Office, Madras, 1991. V N Shukla&Mahendra P Singh, The Constitution of India, 9th ed., Eastern Book Co., Lucknow M.P Jain, Indian Constitutional Law, sixth edition, 2011 The National Commission for Minority Educational Institutions Act, 2004 Corpus JurisSecundum Volume LXVII

LIST OF CASES
1) re Kerala Education Bill..AIR 1958 SC 956. 2) St Xaviers College v. State of Gujarat............AIR 1970SC2079. 3) Unni

Krishnan,

J.P.

and

Ors.

v.

State

of

Andhra

Pradesh

andOrs (1993)1SCR594.
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T.M.A .Pai Foundation and Ors. v. State Of Karnataka and Ors.(AIR2003SC355). 4) St. Stephen's College v. University of Delhi...........(1992)1 SCC 558. 5) Minor P. Rajendran v. State of Madras and Ors[1968]2SCR786 6) D.A.V.College,Jullunder v. State of Punjab.. (1917) 2 SCC 269 7) Manager,St Thomas U.P School, Kerala v. Commr.and Secy.to general Educational

Dept,,.(2002)2SCC 497
8) SidhrajbhaiSabbaiv.State of Gujarat.(1963)3 SCR

837

DICTIONARY AND LEXICONS

1. AiyarRamanatha P., The Law Lexicon, 2nd Edition, Reprint 2006, Wadhwa Nagpur. 2. Garner Bryan A. Blacks law Dictionary, 7th Edition, 1990, West. 3. Kirkpatrick, Betty, The Concise Oxford Thesaurus, A Dictionary of Synonyms, 2004. 4. The New International Websters Comprehensive Dictionary, 2004.

WEBSITES 1. http://lobis.nic.in 2. http://supremecourtofindia.nic.in 3. http://www.indiankanoon.org 4. http://www.judis.nic.in 5. http://www.manupatra.com 6. http://westlawindia.com

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