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Rights of
Christian Missionaries to Establish and Administer Educational
Institutions
It is well known that the
standard of Christian missionary educational institutions was by and
large higher than the level of other institutions. Thanks to the
dedication of Christian missionaries, aided generously by the British
rulers, the education as well as literacy average of Christians is also
higher than that of Hindus.
The facile assumption in
St. Stephen's College v. University of Delhi,
made in the context of preference to the Christians in the matter of
admission to a Christian institution that minorities are
"underprivileged" communities and that the principle underlying article
16(4) is attracted in the matter is with due respect, not based on any
factual survey. The only circumstance cited in support of this
conclusion was that if admission were to be strictly on merit, not even
ten percent seats were secured by Christians in the total population of
the country is much less, this can hardly be a matter of alarm. Thus,
the protected minorities are not required to confine admission to their
institutions to member of their minority community in order to earn
constitutional protection. Often, in minority institutions, the student
belonging to the majority far out numbered those belonging to the
minority concerned. It cannot therefore be said that it was proposed
through article 30 to raise the educational standard of the minorities
in order to make them equal to others.
In Sidhajbai
v. State of Gujarat , unanimous decisions of a six judge
Constitution Bench. The petitioners were again Christian missionaries
who were running numerous primary schools and also a training college
for teachers which fed those schools. The state government ordered that
80 percent of the seats in that training college should be reserved for
teachers deputed by the government. The management were also directed to
provide hostel accommodation for them. Direction regarding observance of
holidays were also issued. On refusal of the management its grant were
stopped. This was challenged by the management, Shah J. speaking for the
court, expressed the tentative view that under article 26(a) every
religious denomination had a right to establish and maintain
institutions for religious and charitable purposes, "and in a larger
sense an educational institution may be regarded as charitable". The
learned judges added that it was not necessary to decide this question
as article 30(1) itself was squarely attracted. There was hardly any
need for hesitation in expressing this view in basing this decision. As
pointed out by Seervai:
In India as in
England the advancement of education is also recognized head of charity;
therefore educational institutional would be covered by the words
'charitable institutions' in article 26(a).
Though the objective of training of
teachers of schools of local bodies may be in the public interest, the
same could not be permitted to be achieved at the cost of the
institutions. The regulations, which may lawfully be imposed as a
condition of receiving grant or recognition, it was held, "must satisfy
a dual test, the test of reasonableness and that it is regulative of the
educational character of the institution and is conductive to making the
institution an effective vehicle of education for the minority community
or other persons who resort to it".
In Rev. Father
W. Proost v. State of Bihar , the petitioners were a Christian
mission who were running St. Xavier's College Ranchi. They complained
against a new Act under which a University Service Commission was
established. Every appointment, dismissal, removal, termination of
service or reduction in rank of a teacher of an affiliated college was
required to be made by a governing body of the college on the
recommendations of this Commission and subject to the approval of the
university. The Constitution Bench, speaking through Hidayatullah C.J.,
held, following the earlier decision noted above, that this provision is
destructive of the right of the management. The institution was held
entitled to the protection of an exemption clause under which, in case
of minority institution only, 'approval' of the Commission and the
university was required and not 'recommendation' of the Commission. In
other words, recruitment was to be made by the institution itself and
not by the Commission for it. The provision requiring 'approval' was
apparently not challenged.
A nine Judge Bench of the Supreme Court exhaustively considered the
extent and scope of Article 30(1) in Ahmedabad St.
Xavier's College Society v. State of Gujarat . The Society of
Jesus, the petitioners, was running the St. Xavier's College at
Ahmedabad with the objective of providing higher education to Christian
students. However, children of all classes and creeds were admitted to
the college. The college was affiliated college under the Gujarat
University Act, 1949. The petitioners challenged sections 33-A, 40, 41,
51-A and 52-A of the Gujarat University Act, 1972 which provided for
university nominees in the governing and selection bodies of all
colleges, conversion of all affiliated colleges to constituent colleges,
approval of Vice Chancellor for disciplinary action against members of
teaching staff, and reference of dispute between the staff and
management to arbitration in which the umpire has to be Vice
Chancellor's nominee. The court held, that these provisions could not be
applied to the minorities; the Court held that these provisions could
not be applied to minority colleges. The Court also emphasized that the
right conferred to the religious and linguistic minorities to administer
educational institutions of there is not an absolute right. The right is
not free from regulation. Just as regulatory measures are necessary for
maintaining the educational character and content of minority
institutions, similarly regulatory measures are necessary for ensuring
orderly, efficient and sound administration. In the leading judgment Ray
C.J. observed:
Permissible
regulatory measures are those, whose which do not restrict the right of
administration but facilitate it and ensure better and more effective
exercise of the right for the benefit of the institution and through the
instrumentality of management of the educational institution and without
displacing the management.
In All Saints
High School v. Government of A.P. Fazal Ali, J. summarized three
important tests which would determine whether or not the action of
government amounts to interference with the management of the
institution; (1) In order that the management of the institution is free
from outside control, the founder must be permitted to mould the
institution as they think fit. (2) No part of the management could be
taken by the government and vested in another body without an
encroachment upon the guaranteed right enshrines in article 30(1) of the
Constitution; (3) There is however, an exception to this general rule
which is that the government or the university can adopt regulatory
measures in order to improve the educational standards which concern the
body politic and the dictated by the consideration of the advancement of
country and its people, so that the minority institution may not under
the guise of autonomy or exclusive right of management be allowed to
fall below the standard of excellence that is required of educational
institution.
St. Stephen's
Case a Wrong Assumption of Backwardness
The minority institutions have however lost several battles against
their teachers. The Frank Anthony ruling in regard to the director
approval for an order of suspension was unsuccessfully assailed as
contrary to lily Kurian in Y. Tehclamma V. union of India All Bihaer
Christian Schools Association State of Bihar Manohar Haries Walters V.
Basel Mission Higher education Center K.N. Singh J. n the Bihar
Christian Schools case has indeed been at pains to stretch the
regulatory power of the state to their maximum in the process
distinguishing all previous decisions seeming to decide the contrary. On
the other hand the constitution Bench (headed by Kania J. as he then was
and speaking through Shetty J. with Kasliwal J. dissenting) has in St.
Stephen's College v. University of Delhi bent over backwards in
conceding the claim of the two government aided Christian institution to
make admission according to their sweet will, (specially on the basis of
100 per cent interview mark form out of candidate selected preliminarily
on the basis of their secondary school marks the number interviewed
being about five times the number of seats) in total disregard of the
norms fixed by the university and giving preference to students of their
own community.
The court placed a limit of fifty
per cent on reservation of seats for them applying in the process
decisions under article 16(4) by a process of reasoning which with the
utmost respect is rather confusing mixing up unrelated concept they
sidetracked article 29(2) and distinguished earlier decision on the
subject such as D.A.V. college and Kerala Bill cases relating to
reservation in favor of backward classes of citizens were relied on and
the minorities were assumed to be the underprivileged Emphasis was
placed on the minorities rights in their own educational institution
ands following Mathew J. In St. Xavier the parents right to have their
children educated in intuitions having an atmosphere congenial to their
own religion preference to Christians in admission was defended das
being not solely on the basis of religion but to prefer their community
candidates in their educational institutions a rather baffling
distinction which could be made only by a court which must be right
because it is final.
The Supreme court has further
conceded to minority managements the power to give indirect preference
to candidates of their community in appointments of the posts principal
and vice principles by requiring that the candidates should fulfill over
and above the qualifications laid down by the university or a Board some
additional lingual qualification and there by excluding other candidates
from the field of choice in Virendra Nath Gupta V. Delhi Administration
it was so decided in favor of a linguistic (Malayalam) minority
institution and in the Karamat Girls college of Lucknow case the same
principle was applied even in the case of a secular education
institution run by a religious minority (Muslim) which prescribed Urdu
as an additional qualification for the post of principle. The latter
case assumes without any discussion that minority instructions do have
such a right.
One
Minority Opposing Another School
In Mark Notto V. State of Kerala the
Christian community was running a boys school It. was denied permission
to admit girls to the school on the ground that there was already a
girls school run by the Muslim community in the neighborhood. The
Muslims also objected to a coeducational institution. The grounds for
refusal of permission were held unsound and the refusal of permission
was held volatile of the Christians right under articles 30 (I). The
Christian community has a right to have schools of their choice for
teaching their girls if they did not think it in their interest to send
them to the Muslim girls school. The rule under which the permission had
been denied was held inapplicable to minority schools. It was not
considered necessary to strike down the rule in its application to all.
Classification should be Rational not Communal
The state or courts have no right that every institution of a majority
community is run by crooks or imbeciles and that all such institutions
can be properly administered only through state authorities. It is true
that much management are corrupt and effective measures must be taken to
ensure that they are not allowed to misappropriate or dissipate the
assists for the institutions or to indulge in nepotism or discrimination
in the matter of appointment f teachers admission of student etc. But
complaints are not confined to managements of majorities institutions
only. Excepting very few select old Christian missionary institutions
like St. Stephens Loreto etc. most minority institutions also (including
even Christian intuitions) are not immune from similar complaints
including very often complaints form teacher parent sand other member of
their own community. Conversely there may be excellently managed
institutions established by members of majority community also say those
by the Ramkrishan Mission Bharatiya Vidya Bhawan Birla Education Trust
etc. So whatever regulation and control be needed it should be
objectively decided in relation to each individual case and not on
covertly communal (whether based on religion or language) ground any
classification should thus be primarily on the bases rationally
suggested by Dwivedi J. and secondarily on the basis of ratings ( as in
the case of say debentures or hotel etc.) with reference to availability
of facilities past performance reputation credibility standard of
teacher infrastructure judge by a high powered autonomous body not on
the ground of its being established by a minority or the majority.
Conclusion
This project throws light on the rights given to the minorities in the
Constitution of India. The analysis of diverse judgment can be
categorized under the following heads:
1. The linguistic approach: this
approach tries to construe the word "administer" so as to confine it to
good administration. The right to administration does not include the
right to maladministration an institution. This approach can be found in
the judgment of the S.R. Das, C.J. in Kerela
Education Bill .
2. The approach of autonomy:
according to this approach, so long ass the autonomy of this institution
is preserved, regulation of its working is permissible. The exposition
by Khanna J. in St. Xaviers is not an outstanding example of this
approach, because though it can be discerned in earlier pronouncement he
has elaborate in the ample measure.
3. The moral approach: it has been
stated that if the minorities asserts a right of administration, it is
their duty to provide good administration.
4. The constitutional-cum-linguistic
approach: according to this approach, what the constitution in
article 13 prohibits is a law, which "abridges" a fundamental right.
Regulatory measures do not abridge the fundamental rights guaranteed by
article 30 and are therefore not hit by article 13. This approach was
enunciated by Mathew J. in St. Xavier's,
5. The logical approach: legislative
measures that do not directly impinge upon minority rights are
permissible, not withstanding that their indirect impact may be adverse
to those rights. The primary object is not interference with a
fundamental right, than the fact that the secondary impact of the
challenged law may be to impair a fundamental right, is immaterial.
Mathew J. in St. Xavier's also suggests this approach..
This project also throws light on
the right of the minority to establish and administer educational
institutions. Taking the power of J. Khanna enclosed by Krishna Iyer J.
any privileged or pampered section of the population It only want to
ensure that minority are not discriminated against welcome. For bringing
this regionalism communalisms and linguist have to be discouraged for
preservation of the unit and integrity of India every citizen should be
made to feel that he is Indian first irrespective of other basis. In
this view any measure at bringing about equality should be welcome.
Under eye of law majority or
minority both should be treated equally and any citizen is Indian first
and then belongs to any particular community. Thus, grievance of the
majority can be redressed either by (i) extending the protection
available under article 30 to cover all religions, whether they be
minority religions or majority religions or (ii) by removing article 30
from the constitution and inserting 'educational' in article 26(a),
which would place al religion at par.
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