Establish & Administer
This chapter entangles some legal issues associated with the words ‘to establish and administer’. Next it covers the Benefit Debate i.e. if the majority of the students do not belong to a minority community but the school is established and administered by the minority would it continue to be called a minority institution and avail of the benefits under article 30.
A. Article 30 (1) reads ‘all minorities shall have the right to establish and administer educational institutions of their choice’. These two words are to be read conjunctively. Thus, a minority can claim a right to administer an educational institution if it has been established by him and not otherwise. What is material is the establishment of the institution by the minority concerned. The mere fact that funds were obtained from abroad for assisting in setting up and developing the school which was established by a minority in India, or that its management was carried on at times by some persons who were not born in India could not be a ground to deny it protection of art 30 (1).
In the case of Azeez Basha vs Union of India the question was whether certain amendments to the Aligarh Muslim University Act, 1920 affected minority rights under article 30 (1). The Court held that while the university had come into existence because of Muslim demands it was in fact established by Central Legislation and hence could not be said to be established by a minority. The decision has been criticized by scholars like Shri M. Seerwai.
Suppose an institution is established by a member of the minority community, imparts secular education, it would still be treated as a minority institution, if it is shown that it serves or promotes its religious tenets, philosophy, culture, language and literature. The purpose of art 30 is that the right is meant to benefit the minority by protecting and promoting its interests. A considerable section of the community must be benefited by the institution (Benefit Debate that we shall talk about later). Sree Hain Swetambar Terapanthi Vidyalaya vs West Bengal, AIR 1982 Cal 101.
Relationship between art 29 and 30 - a comparison of art 29 (1) and 30 (1) would show the following: Art 29 protects the rights only of Indian citizens while art 30 does not refer to citizenship as a pre-condition. Art 29 is applicable to all Indian citizens, majority or minority; art 30 is available only to religious or linguistic minorities. For a recap art 29 (1) reads ‘any section of the citizens residing in India having a distinct language, script or culture of its own shall have the right to conserve the same’. You see it could apply to a Tamilian as much as to an Assamese Hindu or Muslim.
There is a close affinity between art 29 and 30. Since a minority community can best conserve its language, script or culture through educational institutions the right to establish and maintain educational institutions of its choice by a minority is therefore, concomitant to its right to conserve its distinctive language, script or culture and that is what is envisaged by art 30 (1).
This does not mean that if a minority establishes an educational institution that imparts secular education it ceases to be one because it does not help conserve the language etc of a minority. The key words are those in art 30 (1) i.e. ‘of their choice’ meaning that a minority member can establish whatever types of schools that he wants. So if a Muslim establishes an English medium school it would continue to be a minority school by virtue of it having been started by a Muslim. So what matters is being a minority.
‘The advantage of art 30 is available to all minority institutions and not only those whose object is to conserve or promote the language of minority’. Indulal Hiralal Shah Vs S.S. Salgaonkar. In Ahmedabad St Xavier’s Society (1974 1 SCC 717) the departure from the Kerala case was consolidated by a nine-judge bench of the Supreme Court. Khanna J is his concurring judgment observed: ‘The minorities can, however, choose to establish an educational institution which is purely of a general secular character and is not designed to conserve their distinct language, script or culture’.
Friends the above para makes me wonder what the framers of the constitution had in mind. It is one thing allowing Muslims to establish madrassas to impart Islamic education but to allow any school started by a minority to avail of benefits under art 30 (1) is carrying compassion too far! Further this is not specifically stated in the Constitution but is a result of interpretation by Courts.
In reality state-aided educational institution even though established and run by a minority, is obligated not to deny admission to members of other communities based on religion, caste and language. Friends, which Hindu would want to study in a Madrassa? On the other hand most Hindus are forced to study in Christian schools because there are not as many Hindu schools esp. in the seats of British power, Mumbai, Calcutta and Madras. Why is that so? Read on.
Are minorities living in Hindu majority states treated so badly in 1947 to today that such favorable treatment to them was provided for in the Constitution?
For now I will agree with the Courts that the advantage of article 30 is available to all minority institutions and not only those whose object is to conserve or promote the language of minority. As mentioned above the intent of allowing minorities the advantages of article 30 (1) is to enable compliance with art 29 (1) that reads ‘any section of the citizens residing in the territory of India having a distinct, script or culture of its own shall have the right to conserve the same’. Imparting knowledge of this type can best be done through an educational institution correct?
B. Minorities have a Right to Establish - If a minority wants to start a school in a certain locality but the State disallows it then what happens. The issue came up before the full bench of Kerala High Court in Fr Mathew MC Vicar vs State of Kerala (AIR 1978 KER 227). Kerala Education Rules prescribe the procedures for determining the areas where new schools were to be opened. The Petitioner wanted to start an educational school in a particular area since it did not have a Catholic school but as per the rules no schools could be opened till the Director of Education gave a report indicating the areas where schools can be opened. The Petitioner claimed infringement of minority rights under article 30 (1) and went to Court. Supporting the government decision the Court observed “Regulation of the right in time as well as space, must, it appears be permissible”.
A different approach was adopted by the Karnatka High Court in Socio Legal Advancement Society vs. State (AIR 1989 KAR 217) where a society founded for the benefit of the Malayali minority community has been denied the recognition of a Teachers Training Institute established by the Society.
The State felt that allowing another institute would lead to unhealthy competition and bring about a dilution of the Teachers Training Program. The Court held that a minority institute could not be stopped from establishing such an educational institution.
Friend’s minority institutions can overrule govt rules on the number of schools in a locality etc. So what this has done is to make only Hindu schools subject to such rules. This way we have divided the country into majority and minority. I wonder whether the framers of our constitution want these provisions to divide the country.
C. Summary - from an overview of various Supreme Court decisions the following appear to be the various facets of the right to administration.
• Right to choose its managing and governing body.
• Right to choose its teachers and the right to impose service conditions regarding the teachers.
• Right relating to the admission of students.
• Right to choose its own medium of instruction and atleast a part of the syllabus.
• Right to use its properties and assets for the benefits of its own institution.
In the following chapters various aspects concerning these rights shall be discussed.
D. BENEFIT DEBATE
Minority schools are basically Madrassas and Convent schools. No Hindu would ever want to study in the former. Hindus study in the latter and schools set up by Hindus. Now we come to the Benefit Debate i.e. if the majority of the students do not belong to a minority community but the school is established and administered by the minority would it continue to be called a minority institution and avail of the benefits under article 30.
The above para clearly states that fulfillment of article 29 (1) i.e. conservation of minority culture, etc is sought to be achieved through educational institutions. In cases where the majority of the students are Hindus how is the school meeting the provisions of art 29 (1), conserving its own language, culture, script.
There have been a number of contrary judgments on the subject, lets look at a few.
1. In case of Dipendra Nath Sarkar (AIR 62 PAT 101) the Full Bench of the Patna High Court held that in order to claim protection of art 30 (1) it was not necessary that the educational institution should be established for the benefit of the minority.
2. In the case of Unnimoyin Kutty (AIR 84 KER 124) a single Judge of the Kerala High Court held that the real test for determination of minority status is whether the institution is established and administered for the benefit of the minority.
3. In the case of Andhra Kesari Education Society (AIR 88 AP 256) decided by a Division Bench of the Andhra Pradesh High Court the court observed ‘The institution must be for the benefit of the minority community, it must serve the interests of that community. Otherwise there would no basis, reason or rationale for calling it a minority institution. These observations are made in the context of an educational institution imparting general secular education and not that which impart education in the language/medium of instruction of the linguistic minority or impart religious instruction relevant to the particular religious minority’. Friends can somebody define secular education for me?
Since individual judges have relied on Supreme Court decisions it becomes crucial to see what the Supreme Court has to say. It is important because increasingly education is becoming a commercial activity and it is in the interest of managements to claim minority status. By doing so they get arbitrary control over the appointment of Principal and some higher posts, they can do away with reservations in admissions as well as appointments, esp in professional colleges they have a wider choice and arbitrary power to select students, even if an institution is mismanaged they can restrain it from being taken over. The advantages are many so they must not go to the wrong claimants within the majority or minority communities.
Quote Advocate Mihir Desai ‘I believe that for achieving minority status the institution should be established for the benefit of the minority is the correct view’. In the case of Christian run institutions where the majority of the students are Hindus what Mihir’s point is that they would no longer get the advantages conferred by article 30 (1). What is happening today that one is protecting individual rights of those running the institution but that is not the object of art 30? The ultimate object is to allow minority children to study in institutions run by their own community.
SUPREME COURT - CONFUSING VERDICTS
Unfortunately the apex court has never tacked the issue directly quote judgments.
1. Kerala Education Bill Case (AIR 58 SC 956). Excerpts ‘Condition three for availing of privileges of art 30 (1) is the educational institution must be established for the members of his or their community’. A few lines later ‘There is no such limitation in art 30 (1) and to accept this limitation will necessarily involve the addition of the words “for their community” in the article which is not ordinarily not permissible according to well established rules of interpretation’. Note it is contrary, also said is that the article is subject to interpretation and not defined in the Constitution. A few lines later ‘The real import of art 29 (2) and art 30 (1) seems to us that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it’. So what the Apex court is implying is that the minority educational institution must be for the benefit of the minority community and having a few outsiders does not mean it ceases to be a minority institution.
2. In the case of St Xavier’s College (AIR 1974 SC 1389) Ray C J speaking for himself and on behalf of Palekar J observed: ‘The object of article 30 is to enable children of minorities to go out in the world fully equipped. General secular education is covered by art 30’. Two points. One is that even if the institution is established for secular general education it may still get the protection of art 30 (1). Two, but for this, it is necessary that the institution is established for the benefit of the minority. However, the Supreme Court sounded a slightly different note in case 3 below.
3. St Stephan’s College (AIR 1992 SC 1630). ‘If the aim of article 30 (1) was that minorities are entitled to establish and administer educational institutions for their exclusive benefit the article would have been differently worded and it would have contained the words for their own community. In the absence it is legally impermissible to construe the Article as conferring the right on the minorities to establish institutions for their own benefits’. Even in practice, such claims are likely to be met with considerable hostility. It may lead to religious bigotry, which is the bane of mankind. Every educational institution irrespective of the community to which it belongs is a melting pot in our national life. It is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential that there should be a proper mix of students of different communities in all-educational institutions’. The Supreme Court finally held that even in a minority institution atleast 50 % seats must be made available to students from non-minority communities.
4. It is thus clear that a minority institution has to be established for the benefit of the minority community (exclusive or not).
Does an institution lose the advantages of art 30 (1) if non-minority students are admitted to it? The Courts have held that this is not the case.
1. In Kerala Education Bill Case the Supreme Court observed: ‘The real import of art 29 (2) and art 30 (1) seems to us that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it’.
2. In case of State of Kerala vs Rev.Mother Provincial, the Supreme Court observed: ‘the first right is the initial right to establish institutions of the minority’s choice. Establishment means bringing into being of an institution and it must be by a minority community. It is equally irrelevant that in addition to the minority community others take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy protection’.
3. St Stephan’s College (AIR 1992 SC 1630). ‘The minority institutions shall make available atleast 50 % of the annual admission to members of communities other then the minority community. The admission of other community candidates shall be done purely on the basis of merit’.
ANALYSIS - friends the judgments are confusing and clearly against the interests of the majority community. A few thoughts.
1. In the case of Arya Samaj Education Trust (AIR 1976 DEL 207) the court held that Arya Samaj was not entitled to protection under article 30. The Court went into the historical context and assessed the Report of the Minority Sub-Committee to the Constituent Assembly and the debates thereafter, came to the conclusion that the words ‘based on religion; in art 30 (1) were always meant to include religious groups and not sects or denominations. Excerpts from the report- “The word ‘minority’ used in the expression minorities based on religion used in art 30 (1) connotes only those religious minorities which had claimed separate rights from those of the Hindus prior to the Constitution such as the Muslims and the Sikhs. The Christians did not seem to have claimed separatists rights but they were never the less a distinct minority based on a religion which at no stage was regarded as a part of Hinduism. Because of the political origin of the sense in which the word ‘minority’ was used in India, it was meant to include Muslims and Sikhs in 1947-50. The framers knew that Hindus would not go to Muslim madrassas thus I would assume they did not feel to include the words ‘for their community’ in article 30 (1). They had not envisaged that Christian run schools with majority of Hindu students would ask for minority rights or foreign funding to Christian missionary schools. Unfortunately they did not leave behind a comprehensive definition or explanation of various terms like secularism, minority, and benefit leaving it to the Courts to interpret. As a result what we have is confusion, the above three judgments prove that.
2. Article 29 and 30 read in conjunction clearly imply that the right to establish and administer educational institutions to minorities read Christians were given so that conserve their own culture, script and language. One can somebody tell me how many Christian’s schools are working towards conserving Christian culture etc. Two could somebody define for me, what is Christian culture, language and script in the Indian context?
3. A friend of mine who is from Jammu gave me this very interesting piece of information recently. From Jammu to Rajouri on the way to the international border with Pakistan the Missionaries have started a big school. What is the population of Christians in the state, area is insignificant why have the missionaries started a school there? How is that school going to conserve Christian culture, script and language? Are there any international ramifications to this? Questions are many? But our Constitution and Courts are generous in their interpretation of article 30 (1)!
4. Taking my argument forward I believe Christian schools that do not fulfill the provisions of article 29 (1) must cease to be minority institutions for the purposes of article 30 (1). They are being used by the majority community so there is no conservation of minority community language etc unlike a madrassa. Just because Christians manage them does not mean that they can avail of the benefits under article 30 (1).
5. Next question, then how did the Indian Christians come to control some many English medium schools that are used by the Hindus? Let’s peep into the past to find answers. Most of the older well known schools are a product of the colonial times and were opened for reasons that are best articulated by Macaulay’s minute of 1835. On the role of the government, “It is not only our duty”, declared Lord Palmerston, the Prime Minister, “but in our interest to promote the diffusion of Christianity as far as possible throughout the length and breadth of India”. Schools were a tool to produce Indians who looked up to the West as their ideal and spreading Christianity.
6. Let us take the example of Mumbai. Amongst its most well known schools are Cathederal, St Mary’s (started 1871), Bombay Scottish. There are others like St Andrews, St Stanishlaws and St Theresa. All these schools were started between 1860 and 1925 when India was ruled by the British read Christians. The rulers allotted them huge properties and financial grants because they were an instrument of spreading the making Indians look up to the West as an ideal and spreading Christianity. After Independence these schools continued to be looked mostly by foreigners (my school St Mary’s had foreign fathers till the 1970’s). Gradually Indian Christians took over. All through the majority students were Hindus. So before 1947 these schools were a strategic tool in the hands of our colonial masters, post 1947 they came to deserve minority rights.
7. Friends give me a break. Why on earth must Jesuit schools be given the advantages of article 30 (1)? A journalist friend of mine told me they are doing yeoman’s service to the country. No quarrels with that but can someone tell me who is funding opening of new Christian schools? Newspaper reports tell us of thousands of crores being sent to Missionary organizations. Can someone tell me what the purpose of such funding is? If the West is so concerned about the state of India’s educational system they can give direct grants to the Government of India.
8. Another friend argued that we should be grateful to the West for funding our education. I refuse to accept the logic that there is not enough money in India to fund education. Let me give you an example. When the Mumbai-Pune Expressway had to be built there was speculation and cynicism all around on how would the State govt raise Rs 1500 crores in a resource starved country. Some said we approach the World Bank. Through some innovative financial structuring the Maharashtra state govt raised more than that. Friends I strongly believe that money India has plenty the important thing is for money to be well spent. If the Govt of India were to remove the Rs 2 lakhs restriction on investment in 8% Tax Free RBI Bonds am sure they could raise Rs 5,000 crores plus within a couple of months. On the other hand Foreign Funding comes with strings attached. In this case the West and various parts of the Church seek to pursue their own agenda while remitting money for education. Thank God it is not a loan because the annual depreciation of the rupee visa viz the dollar would make foreign funding expensive as compared to raising money in India @ 7-8% via the RBI Bonds route.
9. The reasons for starting schools were/are clearly political. For reasons mentioned above they do not deserve constitutional benefits. It has given the Christians far excess power than what their population deserves. Friends today Muslims get money from the Arab World, Christians from the Western world. Education esp. for Christians has become an instrument of political power. In a changed scenario why must the Constitution continue to provide them with special facilities? Provide the Hindus with a level playing field. During British read Christian rule they could not start schools due to Brit policies, post independence the Constitution provides minority with special rights, what about the Hindus?