“Minorities Right to establish and administer educational institutions.. a critique”

“Minorities Right to establish and administer educational institutions.. a critique”

“Education is what survives when what has been learned has been forgotten.”[1]

As starting with this quotation relevance and proximity of education in individual’ life can be counted. Indian constitution draftsman believed that in order to be a welfare state various fundamental rights should be endowed to citizens as to develop a sense of equality and unity and right to education is the best developer of these principles. But the challenge of India’s plurality is enormous – eight major religions and myriad creeds, 800 languages of which 22 are ‘official’ languages, 8% of the population are indigenous peoples, a social mosaic of castes and sub castes and over 60 socio-cultural sub regions.

In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims (12%), which is world’ third largest. In India majority consist of Hindus, their population includes more that 80% of India’ population. India is a secular state but in virtual sense it’ an utopian concept because in a country where more than 80% of population consist of one single religion, so, its quite difficult to provide equal status to minority. So, in order to provide equal status to these minorities special privileges are being accorded to them in our constitution. As taking an example of Muslims in India, have a poverty rate of 43% whereas the national average is 39% (National Sample Survey Organisation, 1999-2000). In rural areas Muslim landlessness is 51% as compared to 40% for Hindus.

Literacy rates are substantially lower among Muslims, leading to deprivation of jobs in higher positions in government offices and skilled professions in the service sector. In urban areas, 60% of the Muslims have never gone to schools as against the national average of 20%. Only 5%of Muslim women have completed high school education and the income of the average Muslim is 11 % less than the national average. To this may be added the Kashmiri Muslim community, with its distinct political history and its guaranteed status of self rule in past, is a testimony to the betrayal of rights and the denial of justice to the Muslim population[2]. So, still there is need of further implementations of new laws in order to meet their drowning standards.

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.

Constitutional right accorded to Minorities

Right of a minority to establish educational institutions –
(a) Article – 30 –
Article – 30(1) gives the linguistic or religious minorities the following two rights:
(a) The right to establish, and
(b) The right to administer educational institutions of their choice.

Article – 30(2) bars the state, while granting aid to educational institutions, from discriminating against any educational institution on the ground that it is under the management of a linguistic or a religious minority. It mandates that in granting aid to educational institutions, the state shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

The minorities have been given protection under article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education will develop the commonness of boys and girls of India. This is in the true spirit of liberty, equality and fraternity through the medium of education. The minorities will feel isolated and separate if they are not given the protection of article 30 general secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.[5]

The Supreme Court has pointed out in Ahmedabad St. Xaviers College v. State of Gujarat that the spirit behind article 30(1) is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country.[6]

(c) What is a Minority?

The expression “minority” has been derived from the Latin word ‘minor’ and the suffix ‘ity’ which means “small in number”. According to Encyclopaedia Britannica ‘minorities’ means ‘groups held together by ties of common descent, language or religious faith and feeling different in these respects from the majority of the inhabitants of a given political entity”. J.A. Laponee in his book “The Protection to Minority” describes “Minority” as a group of persons having different race, language or religion from that of majority of inhabitants. In the Year Book on Human Rights U.N. Publication 1950 ed. minority has been described as non dominant groups having different religion or linguistic traditions than the majority population.

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 uses the term ‘minority’ without defining it. In re The Kerala Education Bill[7], 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 % of what? Should it be of the entire population of India, or of a state, or a part thereof? 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 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, then the question is where to draw the line and what is to be taken into consideration a district, town, a municipality or its wards.

The ruling in the Kerala Education Bill has been reiterated by the Supreme Court in Guru Nanak University case[8]. In that case, the Supreme Court rejected the contention of the state of Punjab that a religious or linguistic minority should be a minority in relation to the entire population of India. The Court has ruled that a minority has to be determined, in relation to the particular legislation which is sought to be impugned. If it is a state law, the minorities have to be determined in relation to the state population. The Hindus in Punjab constitute a religious minority. Therefore, Arya Samajistis in Punjab also constitute a religious minority having their own distinct language and script.[9] It is within the realm of possibility that the population of a state may be so fragmented that no linguistic or religious group may by itself constitute 50 percent of the total state population. In such a situation, every group will fall within the umbrella of Art. 30(1) without there being a majority group in the state against which minorities need to claim protection.[10]

The Court has pointed out that if various sections and classes of the Hindus were to be regarded as ‘minorities’ under art. 30(1), then the Hindus would be divided into numerous sections and classes and cease to be a majority any longer. The sections of one religion cannot constitute religious minorities. The term ‘minority based on religion’ should be restricted only to those religious minorities, e.g. Muslims, Christians, Jains, Buddists, Sikhs, etc., which have kept their identity separate from the majority, namely, the Hindus.[11]

(c) Establish And Administer

Article 30(1) postulate that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. The right to administer has been given to the minority, so that it can mould the institution as it thinks fit, and in accordance with its ideas of how the interest of the community in general, and the institution in particular, will be best served. For purpose of article 30(1), even a single philanthropic individual from the concerned minority can found the institution with his own means.[12]

A minority institution may impart general secular education; it need not confine itself only to the teaching of minority language, culture or religion. But to be treated as a minority institution, it must be shown that it serves or promotes in some manner the interests of the minority community by promoting its religious tenets, philosophy, culture, language or literature.

It has been observed by Supreme Court in the case of Azeez Basha[13]: ” Article 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. The article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise,”
In S.P Mittal v. Union of India[14], the Supreme Court has stated : ” In order to claim the benefit of Article 30(1), the community must show:
(a) that it is religious/linguistic minority,
(b) that the institution was established by it. Without satisfying these two conditions it cannot claim the guaranteed rights to administer it.”

In Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh[15], it was held by the court that the institution in question was not a minority institution. The court classified that the protection of Article 30(1) is not available if the institution is a mere cloak or pretension and the real motive is business adventure.

A society consisting of minority members, or even a single member of a minority community, may establish an institution. The position has been clarified by the Supreme Court in State of Kerala v. Mother Provincial[16]. The court stated that : “It matters not if a single philanthropic individual with his own mean, founds the institution or the community at large contributes the funds. The position in law is the same and the intension in either case must be to found an institution for the benefit of a minority community by a member of that community.”

In Ahemdabad St. Stephens College v. Government of Gujarat[17], it was observed by the court that : “Every educational institution irrespective of community to which it belongs is a ‘melting pot’ in our national life” and that it is essential that there should be a “proper mix of students of different communities in all educational institutions.” This means that a minority institution cannot refuse admission to students of other minority and majority communities.

(d) Regulations of Minority Educational Institutions

The provision of article 30(1) does not however mean that the state can impose no regulations on the minority institutions. In the famous Kerala Education Bill[18], the Supreme Court has observed: “The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right”. It has to be read with regulatory power of the state. Regulations which do not affect the substance of the guaranteed rights, but ensure the excellence of the institutions and its proper functioning in matters educational, are permissible.

(i) Government Grants/Recognition – At present, the situation is such that an educational institution cannot possibly hope to survive, and function without government grants, noir can it confer degrees without affiliation to a university. Although minorities establish and run their educational institutions with a view to educate their children in an atmosphere congenial to the conservation of their language or culture, yet that is not their only aim. They also desire that their students are well equipped for useful careers in life. The students of unrecognized institutions can neither get admission in institutions of higher learning nor can they enter public service. Therefore, without recognition, a minority run institution cannot fulfill its role effectively and the right conferred by Article 30(1) would be very much diluted.

A meaningful or real exercise of the right under article 30(1) must, therefore, mean the right to establish effective educational institutions which may sub serve the real needs of the minorities and the scholars who resort to them. This necessarily involves recognition or affiliation of minority institutions, for without this the institutions cannot play their role effectively and the right conferred on the minorities by article 30(1) would be denuded of much of its efficacy. Article 30(2) debars the state from discriminating against minority institutions in the matter of giving grants. In Managing Board, M.T.M v. State of Bihar[19], the Supreme Court has emphasized that the right to establish educational institutions of their choice must mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to them. Clarifying the position as regards the question of affiliation of, or grant to, minority institutions, the Court observed: “There is, no doubt, no such thing as Fundamental Right to recognition by the state but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under article 30(1). We repeat that the legislative power is subject to the Fundamental Rights and the legislature cannot indirectly take away or abridge the Fundamental Rights which it could not do directly.”

(ii) Conditions For Grants/Recognition – what conditions can be imposed on these institutions as a requisite to giving grants, or according affiliation or recognition to them? This has proved to be a complex and controversial problem. These conditions may be of two kinds. One type of conditions may relate to such matter as syllabi, curriculum, courses, minimum qualifications of teachers, their age of superannuation, library, conditions concerning sanitary, health and hygiene of students, etc. The underlying purpose of such conditions is to promote educational standards and uniformity and help the institutions and help the institutions concerned achieve efficiency and excellence and are imposed not only in the interest of general secular education but also are necessary to maintain the educational character and content of minority institutions.

Such conditions cannot be regarded as violative of article 30(1) and should, therefore, be followed by all educational institutions. A right to administer cannot be a right to maladminister. The matter has been succinctly explained by the Supreme Court in In re Kerala Education Bill: “The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings. Without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the state to insist that in order to grant aid the state may prescribe reasonable regulations to ensure the excellence of the institutions to be aided…. Reasonable regulations may certainly be imposed by the state as a condition for aid or even for recognition.”

(iii) Composition of Managing Bodies – In the composition of the managing bodies Supreme Court has invariably invalidated provisions seeking to regulate the composition and personnel of the managing bodies of minority institutions. A provision interfering with the minorities’ choice of managing body for an institution has been held to violate article 30(1). The Gujarat University Act provided that the governing body of every college must include amongst its members a representative of the University nominated by the Vice-Chancellor, representatives of teaching and non-teaching staff and of the college students. In the celebrated St. Xavier’s College Case[20], the Supreme Court declared the provision as non-applicable to minority institutions because it displaced the management and entrusted it to a different agency; autonomy in administration was lost and new elements in the shape of representatives of different types were brought in. The court emphasized that while the University could take steps to cure maladministration in a college, the choice of personnel of management was a part of administration which could not be interfered with.

(iv) Appointment of Teachers – The selection and appointment of teachers, and the head of the institution, is regarded as pre-eminently a function of the administration. As K.K. Mathew, J., has observed supporting the majority view in Ahmedabad St. Xaviers College case: “It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer and educational institution.”[21]

(v) Disciplinary Action Against The Staff And Salary of Teachers – A significant facet of the administration of an educational institution is the maintenance of discipline among the members of its staff and to decide over the salary of the teaching staff. The right of the minority institution to take disciplinary action against the teachers and decide salary of teaching staff is a very vital aspect of the management’s fundamental Right to administer the institution. Any rule taking away or interfering with this right cannot be regarded as compatible with article 30(1). Thus, while fair procedural safeguards may be laid down for the purpose, the final power to take disciplinary action and deciding the teaching staff must vest in the management of the institution and be not subjected to the control or veto of any outside body.

(vi) Admission of Students and Fee structure – In the St. Stephen’s College v. University of Delhi[22], the Court ruled out that college was established and administered by a minority community, viz., the Christian community which is indisputably a religious minority in India as well as in the union territory of Delhi where the college is located and hence enjoys the status of a minority institution. On the question of admission of students of the concerned minority community, the court has ruled that, according to article 30(1), the minorities whether based on religion or language have the right “to establish and administer” educational institutions of their choice and the right to select students for admission is a part of administration. On this point, the court has observed: “It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it.” There is also the question of fees chargeable by the unaided minority institution from its students. It is clear that an unaided minority institution. The reason is that unaided institutions have to meet the cost of importing education from their own resources and the main source can only be the fees collected from the students. But these institutions cannot be permitted to indulge in commercialization of education. Therefore, it would not be unconstitutional for the government to issue an order which places a restriction on the amount of fee chargeable by an institution, if, on facts, the minority institutions indulge in commercialization of education and maladministration of the educational institutions.[23]

(vii) Medium of Instruction – The right of a minority to establish and administer educational institutions of its choice also carries with it the right to impart instruction to its children in its own language. The result of reading article 29(1) and 30(1) together is that the minority has the choice of medium of instruction and the power of the state to determine the medium of instruction has, therefore, to yield ground, to the extent it is necessary to give effect to this minority right. The most significant case on this point is the D.A.V College, Bhatinada v. State of Punjab[24]. By a notification, the Punjab Government compulsorily affiliated certain colleges to the Punjab University which prescribed Punjabi in the Gurumukhi script as the sole and exclusive medium of instruction and examination for certain courses. The Supreme Court declared that it violated the right of the Arya Samajists to use their own script in the colleges run by them and compulsorily affiliated to the University.

National Commission for Minority Educational Institutions Act, 2004

This act was passed in year 2004 for giving more teeth to minority education in India. This act allows direct affiliation of minority educational institutes to central universities. This act was enacted in order to provide quality education in minority institutes.

Unfortunate Aspect of this Act
According to this bill, any minority educational institutes seeking affiliation to a central university will be granted such affiliation. The various central universities named for the purpose, in the schedule of the bill, are: University of Delhi, Pondicherry University, North Eastern Hill University, Assam University, Nagaland University and Mizoram University. If a university named in the schedule denies affiliation to an institute, a three-member commission (with all the three belonging to the minority community) would give the final and binding ruling. This committee will be headed by a High Court judge and vested with all relevant executive and judicial powers. This commission can advise the central and state governments on any question relating to the minorities’ education, which are referred to it. According to the bill, the commission can “look into specific complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating affiliation to a scheduled university and report its findings to the central government for its implementation.” Only the central government shall have the powers to overrule the decisions of the commission.[25]

The National Common Minimum Programme (NCMP) of the United Progressive Alliance (UPA) mentions that minority educational institutions will be given direct affiliation to central universities.[26] It is a known fact that during its tenure the BJP-led regime had discriminated against and harassed many minority educational institutions. This discrimination was in line with the BJP’s open opposition to the constitutional rights granted to the minorities under Article 30. It is because of the discrimination meted out to the minority institutes in BJP-ruled state like Gujarat and Madhya Pradesh that the UPA incorporated the said objective in its NCMP.[27] Unfortunately, instead of protecting the minority communities’ right to set up educational institutes of their choice and thus cater to the interests of the whole communities, the bill seeks to protect the interests of a select few. The latter are the very vested interests who run minority educational institutes on self-financing basis, without taking into account many relevant and genuine concerns raised by many concerned academics and sections over the past several years.[28]

In a vast country like India in order to provide equality and unity among its citizens, as there is a wide difference between the minority and the majority special rights should be endowed to minorities so that they can develop their personality to the maximum. In accordance to this view various articles in our constitutions and acts are being enshrined, so, that these minorities can compete majority. Among these articles article 30(1) and National Commission for Minority Educational Institutions Act, 2004 provides minorities to establish, administer educational institutes and to affiliate themselves to central universities.

But various lacunas are being observed since the birth of these rights and acts. It has been observed that these articles and acts are unable to clear various facet like – (1) Is there any right to create educational institutes for minorities and if so under which provision? (2) 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? (3) To what extent can the rights of aided private minority institutions to administer be regulated? Still answers to these questions are illusionary and ambiguous in nature. Even National Commission for Minority Educational Institutions Act, 2004 defines a minority institute as “a college or institution (other than a university) established or maintained by a person or group of persons from amongst the minorities.”

Thus, just on account of the minority identity of the management, an institute is to be accorded the minority status, irrespective of whether or not that particular institute is serving the interests of the minority community in its entirety. It is a well known fact that majority of the institutes established in the name of minorities are not serving the real interests of the minorities, especially those of the socially and economically underprivileged sections. Students are admitted on the basis of their money power and not on the basis of their merit or minority identity. That will further fasten this process and will serve the interests of the economic minority instead of the religious and linguistic minorities. So, in order to make these articles and acts free from ambiguity and illusionary nature help from Court should be taken in a view to remove this ambiguity. It is very important as development, equality, unity of our country relies on these articles and acts.