13 Indian Constitution and Minority Educational Institutions

Abdulrahim P. Vijapur

Learning Outcome

1. This chapter will help students to learn about Articles 29 and 30 and inter- relationship between Articles 29 and 30 of the Constitution of India through various Supreme Court Judgements to discuss the issue of minority rights.
2. Discussion on fundamental rights to religious and linguistic minorities to establish and administer educational institutions of their choice, education of their choice would be a key learning objective.

Introduction

India is known for its social, cultural and religious diversity and because of its multi- cultural, multi- ethnic, multi- religious and multi- linguistic society minority rights protection have greater visibility and relevance. Indian Constitution provides protection to minorities under various provisions which are both specific and general in nature.

This chapter deals with the rights of minorities to establish and administer educational institutions under Article 30 of the Constitution. It looks into the various Supreme Court decisions on the subject to gain better understanding of this fundamental right.

Article 30 thus reads:

Right of minorities to establish and administer educational institutions:

(1)All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.]

(2) The state shall not, in 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.

The main aim of this right is to give minorities an opportunity to carry on and protect their culture and religious values. Every minority evidently desires that education should be imparted to their children in an atmosphere amiable to the growth of their culture. It is in the true spirit of liberty, equality, and fraternity that minorities are given protection under Article 30 to establish and administer any institution of their own choice, against which they will feel isolated, separate and discriminated.

Inter-relation between Articles 30 and 29

The issue of interrelationship between Article 29 and 30 has been the subject of discussion in many Supreme Court judgments, the most important one being the case of St. Xaviers College v. State of Gujarat. On the interrelationship between Article 30(1) and 29 (1) court held that, [A]rticle 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. It will be wrong to read Article 30 (1) as restricting the right of the minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with the language, script or culture of the minorities.

It further added that, “articles 29 and 30 create two separate rights though it is possible that the rights might meet in a given case”.

Article 29(1) does not deal with education as such while Article 30 (1) deals only with the establishment and administration of educational institutions and it need not be exercised for conserving language, script or culture. Thus, the conservation of language, script or culture under

Article 29 (1) may be by means wholly unconnected with educational institutions. Article 29 (1) is not confined to minorities but extends to all sections of citizens and the scope of Article 30 (1) extends to all religious and linguistic minorities. As M P Singh puts it, Article 29 (1), neither controls the scope of Article 30 (1) nor is controlled by that article.

The interrelationship between Article 29(2) and 30 (1) has been subject of controversy in many cases. Some authors call this relationship as paradoxical generating confusions like; can minority education institutions deny admission to any student on the basis of religion or language? Whether in admission to minority education institutions, preferences can be given to minority students, overruling the criteria of merit?

The Supreme Court looking into these issues in St. Stephen’s College case opined that, “every educational institution irrespective of community to which it belongs is a ‘melting-pot’ in our national life. The students and teachers are the critical ingredients. It is there they developed respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.” It further held that the minority institutions shall make available at least 50% of the annual admission to members of communities other than the minority community.

It is submitted that this approach of the Supreme Court is not in line with the Constitutional provisions. Realising this, the Court in TMA Pai case opined that, rigid percentage cannot be stipulated. The Court was of the opinion that the authorities can stipulate reasonable percentage in accordance to the type of institution, population and educational needs of the minorities. Basically, Courts have attempted to strike a balance between these two Articles when confronted with the question of interrelationship.

Conditions for Establishing and Administering an Institution

Article 30 (1) provides fundamental right to religious and linguistic minorities to establish and administer educational institutions of their choice. The word ‘establish’ means “to bring into existence”.13 The court has regularly opined that the words ‘establish’ and ‘administer’ as mentioned in Article 30 must be read conjunctively so that minorities will have right to administer educational institutions of their own choice provided they have established it. In other words, the right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution is thus a condition precedent for claiming the right to administer the institution. However, some authors like M. Desai have reservation on such interpretation.

Another significant issue which needs to be looked into is with regard to the nature of educational institutions. In India all the institutions that award degrees need to be established by or under a statute. Even if the institution has been established by the demands of a particular minority, still it does not get the minority status if it has not been established by them. This debate was further diluted by the Supreme Court in the case of S. Azeez Basha v. Union of India, wherein it was observed that the ambit and the scope of Article 30 is very wide and can also include a University. Even if the minority group has been administering the institution from pre-constitution era, which was established by someone else, still this cannot be claimed as a matter of right to administer the same institution.

The case of Aligarh Muslim University is very interesting one in this regard. The reservation in respect of 50% of the total seats for Muslims in AMU was challenged in Dr. Naresh Agarwal v. Union of India. The single judge bench, after examining the relevant provisions and precedents, framed the issue as “whether the Aligarh University was established by a Muslim minority; and if it was so established, the minority would certainly have the right to administer it?” The Court reasoned that Aligarh Muslim University was formed by virtue of 1920 Act and must therefore be held to have been established by the Central Legislature which by passing the 1920 Act incorporated it. Court further added that M.A.O. College and the Muslim University Association and the Muslim University Foundation Committee were institutions established by the Muslim minority and two of them were administered by Societies registered under the Societies Registration Act, 1860 but the University was established under the Aligarh Muslim University Act, 1920 and it could not have been brought into existence otherwise. I held that the Aligarh University was brought into existence by the Central Legislature and the Government of India.

In the case of S.P. Mittal v. Union of India, the Supreme Court observed that “in order to claim the benefits of Article 30(1), the community must show that:-

a) That it is a religious or linguistic minority,

b) That the institution was established by it.

Without satisfying these conditions, the community cannot claim the guaranteed rights to administer them.”

In other words, whenever there is a dispute related to the minority status of any institution, the best way to determine it is by lifting the corporate veil.

The rights provided under Article 19 and 30 is of different nature, the right under 19 is not absolute as it is subject to reasonable restrictions, whereas the rights under article 30 are not subject to any restriction and are almost absolute in nature. The reason for it not being absolute in nature is that it can be restricted in circumstances where the benefit of the student or the quality of the educational institution is at stake. The state is empowered to impose restrictions which do not affect the substantial rights, but which further improves the institutional excellence and proper functioning in all the fields.

Indian Government has come out with guidelines for determination of minority status, recognition, affiliation and related matters in respect of minority educational institutions under the Constitution and a statutory body, National Commission for the Minority Educational Institutions (NCMEI), has been established in 2004.

Education of their choice

The key to the understanding of the true meaning and implication of Article 30 are the words “of their own choice”. This aspect was looked in detail by the Court in Kerala Education Bill case.  The importance of the term “of their own choice” was explained by S R Das, CJ in the following words:

The key to the understanding of the true meaning and implication of the article under consideration are the words “of their own choice”. It is said that the dominant word is “choice” and the content of that article is as wide as the choice of the particular minority community may make it.

He further opined that, [T]here is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit… educational institutions of their choice will necessarily include institutions imparting general secular education also.

This Article leaves it to the choice of minorities to establish such educational institutions as will serve both the purposes: the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough general education to their children.

On similar lines, it has been held by a Full Bench of the Karnataka High Court in Associated Managements of Primary and Secondary Schools in Karnataka vs. State of Karnataka and Ors., that the words of “their own choice” which qualify “educational institutions” shows the vast discretion and option which minorities have in selecting the type of the institution which they want to establish. However, the Supreme Court has repeatedly noted that rights provided under this Article does not militate against claims of the State to insist that in granting aid the State may not prescribe reasonable regulations to ensure the excellence of the institutions.

Scope of Governmental Control

Ambiguous nature of Article 30 has brought many issues before the Courts. It is because of this ambiguity that much of the law on minority educational institutions has been a product not of legislation but of the Court’s rulings. It is also to be noted that the guidelines for the recognition of minority educational institutions prepared by the NCMEI are based largely on, and refers explicitly to, the judgments of the Supreme Court. Let us look into the jurisprudence of governmental control over minority educational institutions through case law.

TMA Pai Foundation case is considered as the most important decision on this issue. The 11 judges pronounced this judgment after reviewing all the previous decisions on the issue. It was expected that the authoritative pronouncement by a bench of such strength would draw a final curtain on these controversies. However, even after this pronouncement some of the important issues remained unsettled which were further clarified by Islamic Academy of Education & ors. v. State of Karnataka & ors. and P. A. Inamdar & ors. v. State of Maharashtra  & ors.

The Supreme Court in TMA Pai Foundation case formed 11 questions. For the purpose of our discussion, question number 4, 5(a), 5(b) and 5 (c) are relevant where Court dealt with the question of government regulations.

On the question of regulation of admission to minority educational institutions, whether aided or unaided by the State or affiliating university, the majority pronounced that admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.

The Court further clarified that the right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30, the State government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. However, Court added, the right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.

It was further held that a minority institution does not cease to be so; the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens’ rights under Article 29(2) are not infringed.

As regards non-minority students, the Court held, who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists.

On the question of admission, it was held that a minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal administration.

It was further pronounced by the Court that while giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students.

With regard to the statutory regulation of the administration of the minority institutions it was held that the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency.

The Court also pronounced that fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

Islamic Academy case clarifying TMA Pai judgment held that, in unaided professional institutions, there will be full autonomy. However, the principle of merit cannot be sacrificed. Court further made it clear that without interfering with the autonomy of unaided institutions, the object of merit based admissions can be secured by insisting on it as a condition to the grant of recognition and subject to the recognition of merit; the management can be given certain discretion in admitting students.

The Court while dealing with the issue of admission held that the management can have quota for admitting students at its discretion but subject to satisfying the test of merit based admissions, which can be achieved by allowing management to pick up students of their own choice from out of those who have passed the common entrance test conducted by a centralized mechanism.

Bench in Islamic Academy case directed setting up of two committees in each State: one committee “to give effect to the judgment in TMA Pai Foundation” and to approve the fee structure or to propose some other fee which can be charged by minority institutions, and the other committee to oversee the tests to be conducted by the association of institutions.

Above two judgments were further clarified in P. A. Inamdar v. State of Maharashtra.

With regard to reservation, the Court was of the view that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. However, Court also noted that a limited reservation of 15% may be made for NRI depending on the discretion of management subject to the condition that such seats should be utilised for NRI wards and the money collected from such seats should be utilised for benefit of economically backward students, whom, on well- defined criteria, the educational institution may admit on subsidized payment of their fee.

With regard to admission procedure, Court explicitly made it clear that to admit students being one of the components of “right to establish and administer an institution”, the State cannot interfere therewith. Up to the level of undergraduate education, the minority unaided educational institutions enjoy total freedom. The Court further held that different considerations would apply for graduate and post- graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfil these objectives, the State can and rather must, in national interest, step in.

The Supreme Court while clarifying TMA Pai Foundation case held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefore subject to its being fair, transparent and non- exploitative. The same principle applies to non-minority unaided institutions.

It also held that all institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure adopted by private institution, if it fails to satisfy all or any of the triple of being fair, transparent and non-exploitative, can be taken over by the State substituting its own procedure.

With regard to the fee structure, the Court observed that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. In other words, no capitation fee can be charged. Court observed that the right to fix reasonable fee is covered within the right to “establish and administer” an institution.

On the issue of the formation of committees, the Court clarified that the two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy are permissive as regulatory measures aimed at protecting the interest of the student community. The Court further observed that the legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.

TMA Pai case, as clarified, firstly by Islamic Academy case and then by P A Inamdar case is the law of the land on Article 30.

These judgments seek to clarify the doubts which persisted since the drafting of the constitution. The Supreme Court has tried to strike a balance between the rights of the minorities to establish and administer educational institutions on the one hand, with the constitutional guarantee of non-discrimination on the other.

Concluding Thoughts

This chapter discussed the issues relating to the rights of minorities to establish and administer educational institutions and also highlighted the Supreme Court’s decisions on the subject to remove ambiguity surrounding the constitutional provision.

TMA Pai case, clarified by Islamic Academy case and P A Inamdar case, has provided substantive clarity to this provision. Analysing these judgments from a positive point of view it can be concluded that if minority educational institutions are not seeking any aid from the Government they are totally free from any control except the demands of natural justice and transparency. If they receive Government aid, the judgments asks the Government to exercise only the minimum regulations necessary to maintain standards and to provide some representation for non-minority students.

However, there are many grey areas left. Interpretation and implementation of these judgments is an area of prime concern. Since, these judgments have extended the limits of governmental control; State can now interfere more directly in the administration of the minority educational institutions than earlier. Further, quota politics might be misused by the government to fulfil their political aspirations. There is a fear that if the State government does not exercise utmost care and sensitivity in this matter, they could seriously undermine the rights of the minorities to establish and administer their own educational institutions as guaranteed by Article 30. There is also a certain amount of vagueness with regard to the application of Article 29 (2) against aided minority educational institutions.

It is clear from the judgments that the apex Court, on the one hand, does not want to curb the guarantees given by the Constitution to minorities; and on the other hand, it is reluctant to give up the non-discrimination doctrine of Article 29(2) whenever public funds are utilised to support educational institutions.

Article 30 offers an important space to the minorities to shape their educational situation in accordance with their desires and should be encouraged as it helps the State in dealing with culture-specific forces behind educational backwardness.

Reference

1. Jagdish Swaroop, Constitution of India (Wadhwa Book Company, New Delhi, 2006)
2. M. P. Singh, V N Shukla’s Constitution of India (Eastern Book Company, 11th edn., 2008)
3. Ranu Jain, “Minority Rights in Education: Reflection on Article 30 of the Indian Constitution”, Economic and Political Weekly [June 11, 2005], p. 2430, 2435.