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Minority Rights - with special reference to Christian missionaries in India

Written by: Varun Shivhare, II Year, National Law Institute University (NLIU), Bhopal
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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.

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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