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Educational Rights Of Minorities

Educational Rights Of Minorities

Educational institutions have reopened for the academic year 2019-2020. New time tables are set. New teachers are appointed. New students are admitted. There is newness in every campus, a new beginning, new enthusiasm. These days my office gets many phone calls from various educational institutions, in particular from Minority Educational Institutions regarding the law related to admission, fee structure, appointment of staff, Managing Committee, grant-in-aid etc. Therefore I decided to pen certain relevant laws that will apply to minority educational institutions. However, this article is solely based on T.M.A.Pai vs. State of State of Karnataka (2002,8 SC 481).

Article 30(1)

Article 30(1) of the Constitution guarantees minorities the right to establish and administer minority institutions of their choice. Establishment here means the bringing into being of an institution and it must be by a minority community. 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.

Minority:

The majority led by Kirpal CJI in Pai Foundation said, the expression “minorities” in Article 30 of the Constitution, whether linguistic or religious, has to be determined by treating the State and not the whole of India as a unit.

The expression minority has not been defined in the Constitution. However, omission to define minorities in the Constitution does not mean that the employment of word “minorities” or “minority” in Article 30 is of less significance. The expression “minorities” has been used in Article 30 in two senses – one based on religion and the other on the basis of language (Khare J).

It means “a non-dominant” group. It is a relative term and is referred to as: to represent the smaller of two numbers, sections or group called “majority” (Quadri J).

Framing of law by State:

No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. Based on this, any law passed by any State Government that is inconsistent with the Constitution can be challenged before a competent court of law

Regulations:

However there can be regulations. Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the majority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. It is, of course, true that government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion, but the right under Article 30 is not so absolute as to be above the law.

Grant-in-aid:

Some educational institutions are struggling to get grant-in-aid. Some others are struggling to give salary to teachers because the State Government has stopped granting grant-in-aid. The question here is whether the grant-in-aid is fundamental right as recognition. The grant of aid is not a constitutional imperative. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. In this respect Article 30(2) only means what it states viz. that a minority institution shall not be discriminated against where aid to educational institutions is granted. However, if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration.

Admissions:

Other question commonly asked is about admission policy. The right to admit students is an essential facet of the right to administer educational institution of their choice, as contemplated under Article 30 of the Constitution. 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. The right to administer, however, is not 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. 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. Therefore an admission policy which is reasonable and transparent is envisaged. The policy must be written. First preference of admissions in our institutions can be given to the children from Catholic families, so to say from the minority community that has established the institution. Second, can be from other minority communities, third from other communities etc., and locality can be preferred too.

It is pertinent to note the effect of above mentioned point that the twin objects sought to be achieved by Article 30(1) in the interest of minorities are : (1) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good general education to children belonging to such minority.

Fee structure:

Can a minority educational institution set a fee structure of its own? The answer is Yes. As the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. In the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. However it must be transparent and reasonable.

Education to Catholic Children:

The twin objects sought to be achieved by Article 30(1) in the interest of minorities are: (1) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good general education to children belonging to such minority.

Bishop Oswald J. Lewis of Jaipur in his keynote address to the Principals of educational institutions run by three dioceses, Jaipur, Udaipur and Ajmer in a seminar (June 23 - 25), where I was the resource person, quoting from the Holy Synod said, “Every baptized Christian is entitled to a Christian education, because one must gradually be introduced to the knowledge of the mystery of salvation, that one may grow more conscious of the gift of faith, that he/she may learn to adore God the Father in Spirit and in truth. When one grows up, one has to devote one’s life to the up building of the Mystical body. Therefore the Holy Synod reminds pastor of souls of their acutely serious duty to make every effort to see that all the faithful enjoy a Christian Education of this sort, especially young people, who are the hope of the Church and the future of the nation.” Hence he urged the principals to provide admission to all the children from Catholic families. He stressed that no Catholic child should be denied admission in our educational institutions.

Dealing with staff, students and parents

Bishop continued his address saying, “Every human person is entitled to respect as a human person.  Persons are entitled to human dignity and respect whether rich or poor.” He urged the Principals to show due respect to the students, staff and the parents. Bishop said, “We know that a wounded tigress is more ferocious than the normal one. If we hurt a person, he/she goes back with vengeance. Here we buy troubles for ourselves”. Thus the Bishop urged the Principals to practise the values of Jesus: Justice, Liberty, Equality and Fraternity as enshrined in the very Preamble of the Constitution of India.  He concluded, “Let us participate in nation-building through our educational institutions, let us produce national leaders who can make our nation proud in all aspects.”

(The writer is Advocate, Supreme Court & Former Member, National Commission for Minority Educational Institutions, Govt of India. Email: lawyering5@gmail.com)

(Published on 08th July 2019, Volume XXXI, Issue 28)