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Rights of Christian Missionaries to Establish and Administer Educational InstitutionsIt 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.'
St. Stephen's Case a Wrong Assumption of BackwardnessThe 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 SchoolIn 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 CommunalThe 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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