The Constitution of India through Article 30 empowers the minority communities to establish and administer educational institutions of their choice. Establishment of educational institutions requires recognition of the institution by the government and/or by the apex regulatory bodies such as Medical Council of India, National Council of Teacher Education, All India Council of Technical Education, Bar Council of India, etc. The institution shall also be affiliated to a university to facilitate grant of certificates to their students on successful completion of the courses or academic programmes. For grant of recognition the institution whether managed by minorities or otherwise, is required to comply with the conditions laid down by the rules and regulations of the respective bodies. Such compliances may include the required infrastructure, land, building, electrification, internet connectivity, Wi-Fi, appointment of qualified staff etc., among other things. Affiliation requires the institution to follow the prescribed curriculum, examination pattern, choice based credit system, appointment of qualified teachers etc., among other things to ensure teaching learning equations. But the minority educational institutions often agitated for relaxations, because of their minority character. Thus, it becomes the subject of conflict between these institutions and the government agencies leading to legal litigations. Some of the cases reach the Supreme Court. The judgements of the Supreme Court in respect of the matters pertaining to recognition and affiliation of the minority educational institutions are discussed in this article.
Recognition of Institution/Academic Programmes
The Government of Kerala passed the Kerala Education Bill in the year 1957. Several complaints lodged before the then Governor of Kerala not to accord assent to the Bill since it encroaches upon the rights of minority groups to establish and administer educational institutions of their choice. The Governor sent it to the Hon President of India for seeking advice of the Supreme Court. The President sent the Bill to the Supreme Court under Article 143 of the Indian Constitution which is known as Re Kerala Education Bill Case[1]. In this case it was opined that reasonable regulations may be imposed by the state as a condition for aid or for recognition unless these restrictions are detrimental to the character of minority institution. Chief Justice Das, speaking on behalf of the Court, held that:
“Article 30(1) covers institutions imparting general secular education. The object of Article 30 is to enable children of minorities to go out in the world fully equipped. All persons whether in the majority or in the minority have right under Article 25 to freely profess practice and propagate religion, bisection of citizen which includes the majorities as well as minorities, shall have under Article 29 the right to conserve their distinct language, script or culture. That is why the minorities are given a specific right in respect of educational institutions under Article 30. Article 30(1) gives the right to linguistic minorities as well where no question of religion arises.”
In the case of Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh[2] the Supreme Court clarified that protection of Article 30(1) is not available if the institution is a mere pretension and the real motive is business adventure.
Minority Character
While dealing with the issue of Minority character of Aligarh Muslim University, a Division Bench of High Court of Allahabad in January 2006 held that the Aligarh Muslim University is not a Minority University within the meaning of Article 30 of the Constitution and hence the provision of 50 percent reservation for Muslims is invalid. The Allahabad High Court cited the judgement of the Supreme Court in S. Azeez Basha v. Union of India[3] which rejected the claim of the AMU being minority institution. However, the Supreme Court issued an interim order to maintain status quo.
The Supreme Court in State of Kerala v. Mother Provincial[4] clarified that a society consisting of minority members, or even a single member of a minority community, may establish an institution. The Supreme Court observed that “It matters not if a single philanthropic individual with his own means founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community.”
In the case of S.P. Mittal v. Union of India[5], it was held that Auroville (Emergency Provisions) Act 1980 legislated by the Tamil Nadu State Legislature does not violate Articles 29 and 30 of the Constitution. Protection under Article 29 and 30 would be available if it is proved that the institution is established by either a linguistic or religious minority. The Tamil Nadu Government taking over the Auroville Township established by M. Alfassa was held to be valid.
The issue of minorities’ Rights came up before the Supreme Court in the case of Kanya Junior High School, Bal Vidya Mandir v. U. P. Basic Shiksha Parishad[6], the Court observed that the Law did not contemplate granting of any higher rights to the minority as opposed to majority and it only conferred additional protection.
In May 2014 in a recent judgment the Supreme Court in Pramati Educational & Cultural Trust v. Union of India[7] observed Right of Children to Free and Compulsory Education Act, 2009 cannot be imposed on the minority educational institutions as it disturbs the minority character of the institution. The Supreme Court held that:
“Thus, the power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice.
We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution, ultra vires the Constitution”.
On 12th February 1996 the case of Thirumuruga Kirupananda Charitable Trust v. State of Tamil Nadu[8] came up for judgement, before the Supreme Court which observed that the minority status to Minority Educational Institution cannot be conferred for a particular period and renewed like a driver’s license. It can only be changed and reviewed when there is a fundamental change in circumstances or a suppression of material fact.
Sanction of Grant-in-Aid
The Supreme Court in State of Bihar v. Syed Asad Raza[9] has held that while sanctioning grant-in-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 community. In another case of Yunus Ali Sha v. Mohamed Abdul Kalam[10] the Supreme Court held that the Management and Administration of the school should be under the control of the managing committee of the minority institution and not under the state authorities. However, in the case of Manager, St. Thomas Upper Primary School, Kerala v. Commissioner and Secretary to Government Education Department[11] the Supreme Court observed that even a single philanthropic individual from the concerned minority community can establish a minority institution with his own means.
Administration of Minorities Educational Institutions
In Gandhi Faiz-e-am College v. University of Agra[12] the Supreme Court held that a Law which sought to regulate the working of minority institutions by providing that a broad-based management committee comprising the Principal and the senior most teacher, was valid and not violative of the right under Article 30(1) of the Constitution. In Lily Kurian v. Sr. Lewina[13] the Supreme Court struck down the power of the Vice- Chancellor to veto the decision of the management to impose a penalty on a teacher. It was observed that the power of the Vice-Chancellor, while hearing an appeal against the imposition of the penalty, was uncanalised and unguided.
In the case of All Saints High School v. Govt of A.P.[14], the Supreme Court held that the regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority, was held to be invalid, as it sought to confer an unqualified power upon the competent authority. In Frank Anthony Public School Employees Assn v. Union of India[15] the regulation providing for prior approval for dismissal was held to be invalid, while the provision for an appeal against the order of dismissal by an employee to a tribunal was upheld. It was further held that the regulations providing for the pay and allowances of teachers and staff would not violate Article 30.
In the year 2006 the Supreme Court in the case of Kanya Junior High School, Bal Vidya Mandir v. Uttar Pradesh Basic Shiksha Parishad[16] drew up a clear line of distinction between laws made by the State to regulate the administration of educational institutions receiving grant in-aid and the administration of the minorities institutions and held that if such regulations interfere with overall administrative control by the management over the staff or abridges or dilutes, in any other manner, the right to establish and administer educational institutions, in that event, to such extent, the regulations will be inapplicable to the minorities.
Affiliation
The Supreme Court in Managing Board, M.T.M. v. State of Bihar[17] observed that the state can lay down reasonable conditions for maintaining the standard of education before they could be considered for affiliation but refusal of affiliation on terms and conditions which practically denies the progress and autonomy of the institution violates Article 30.
The affiliating authorities would require the institution to comply the conditions laid down in their regulations. In D.A.V. College, Bathinda v. State of Punjab[18], Justice Jaganmohan Reddy speaking for the Court held that:
The right of the minorities to establish and administer educational institution of their choice would include the right to have a choice of the medium instruction also.
But if the University compulsorily affiliates such college and prescribes the medium of instruction and examination to be in language which is not their mother tongue or require examination to be taken in a script which is not their own, then it interferes with the Fundamental Rights.
It is true that no linguistic minority can claim that the University shall conduct its examination in the language or script which the minority have a right to adopt but in such a case, it must not force these institutions to compulsorily affiliate themselves and impose on them a medium of instruction and script not their own.
The Supreme Court in Archbishop Raphael Cheenath v. State of Orissa[19] made the following observation:
Reiterated the judgement in Ahmedabad St. Xavier’s college society v. State of Gujrat w.r.t rights of minorities: The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done, as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting those- articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of, those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.
Conclusion
As reiterated by the Supreme Court in Archbishop Raphael Cheenath v. State of Orissa that the minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done, as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution.
The minority communities shall strive to keep their educational institutions on the pedestal of academic excellence so that their students are competent enough to face the challenges when they come out of their colleges.
[1] Re Kerala Education Bill Case, AIR 1958 SC 956; 1959 1 SCR 995.
[2] Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh, AIR 1986 SC 1490.
[3] S. Azeez Basha v. Union of India, AIR 1968 SC 662.
[4] State of Kerala v. Mother Provincial, AIR 1970 SC 2079.
[5] S.P. Mittal v. Union of India, AIR 1983 SC 1.
[6] Kanya Junior High School, Bal Vidya Mandir v. U. P. Basic Shiksha Parishad, (2006) 11 SCC 92.
[7] Pramati Educational & Cultural Trust v. Union of India, WP (C) No. 416 (2012).
[8] Thirumuruga Kirupananda Charitable Trust v. State of Tamil Nadu, 1996 SCC (3) 15, JT 1996 (2) 692.
[9] State of Bihar v. Syed Asad Raza, AIR 1997 SC 2425.
[10] Yunus Ali Sha v. Mohamed Abdul Kalam, (1999) 3 SCC 676.
[11] Manager, St. Thomas Upper Primary School, Kerala v. Commissioner and Secretary to Government Education Department, AIR 2002 (2) 1226.
[12] Gandhi Faiz-e-am College v. University of Agra, AIR 1975 SC 1821; 1975 SCC (2) 283.
[13] Lily Kurian v. Sr. Lewina, AIR 1979 SC 52; 1979 SCR (1) 820.
[14] All Saints High School v. Govt of A.P., AIR 1980 SC 1042; (1980)2 SCC 478.
[15] Frank Anthony Public School Employees Assn v. Union of India, AIR 1987 SC 311; 1987 SCR (1) 238.
[16] Kanya Junior High School, Bal Vidya Mandir v. Uttar Pradesh Basic Shiksha Parishad, 2006 Suppl. 4 SCR 813= (2006) 11 SCC 92.
[17] Managing Board, M.T.M. v. State of Bihar, (1984) 4 SCC 500.
[18] D.A.V. College, Bathinda v. State of Punjab, (1971) 2 SCC 261.
[19] Archbishop Raphael Cheenath v. State of Orissa, 2016 SCC Online SC 761.
This article has been authored by Dr. P.S. Munawar Hussain, Joint Registrar at Maulana Azad National Urdu University, Hyderabad. He was assisted by Ms. Anjali Mehrotra, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.