Minorities' educational rights in India : Issues and perspectives

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1 Minorities' educational rights in India : Issues and perspectives S.R. BHOSALE* & DILIP UKEY** India presents the human variety with her teeming millions consisting of races and people belonging to all stages and states of social evolution and civilization with languages, manners, customs, cults, and cultures of the most diverse kinds Constitutional make up and physical types of races introduce variety of physical form. Different tongues produce a veritable Babel of languages. Nearly all the world religions with their worshippers are to be found here. India is veritably a museum of cults and customs, creeds and cultures faiths and tongues, social groups and social systems. The past thousand years or so have produced a multi-ethnic, multi-religious and multi-lingual country in which small groups and communities never allow their religious and cultural identities to be submerged. On the contrary, any mobilization of one community only provokes counter mobilization by others giving rise to new tensions and tremors in the society.' In fact such diversity and heterogeneity is a strength of India's unity and integrity. The claims, rights and interests of these groups and communities are recognized and protected by the Indian Constitution,' Liberty, Equality and Justice, the trinity enshrined in the Preamble is embedded in Parts III, IV and IV-A of the Constitution. The fundamental postulate for recognition and protection of minorities' cultural and educational Dean, Faculty of Law, Pune University, Pune - 7. ** Reader, Dept. of Law, Pune University, Pune - 7. Rajendra Pandey, Minorities in India - Protection and Welfare (1997), p. 51. See Arts. 29 and 30.

2 232 Cochin University Law Review [1998] rights, is to preserve and promote their identity and continued existence in liberal, democratic India. These groups are accorded some differential treatment by the Constitution. Equal treatment does not prohibit 'separate' treatment to bring them at par with others. However, the exercise of these rights by minority groups, which are cultural, religious or linguistic; raised various complex and conflicting issues. Since, the word 'minority' is not defined by the Constitution several groups make an attempt to take advantage or benefit of Constitutional rights meant for minorities. Similarly, whether these rights are absolute or not, the state could exercise some or the other control over it, is another troubled area, wherein there are diverse of opinions. At the same time judiciary as yet, has not defined the ambit and scope of these rights and if at all any restrictions on those rights.' In view of all these complexities and conflicting contentions, attempt is made herein to undertake the scrutiny of the same. Minority status of educational institutions, aid, recognition and affiliation Articles 29 and 30 of the Indian Constitution confer cultural and educational rights on minorities.' Thus Article 30 (1) runs as, 'All minorities whether based on religion or language, shall have the right to establish and administer educational institutions, discrimination against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. These rights under the Indian Constitution are mere reassurance by the positive legal order in Matter has been referred to the constitutional bench of the Supreme Court for its determination. Art. 29 (1). Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, (2) no citizen shall be denied admission into any educational institution maintained by the state or receiving aid of State funds on grounds only of religion, race, caste, language or any of them.

3 C.U.L.R S.R. Bhosale & Dilip Ukey 233 pursuance of international commitment and development of human rights across the globe. This could be seen from the International Covenant on Civil and Political Rights.' The first and foremost crucial question to be contested is, whether a particular community is a minority community or not. In other words, what constitutes a minority, be it religious or linguistic? This is yet to be decided by the Indian Supreme Court, which question has been referred by it to the larger bench in T.M.A. Pai Foundation v. State of Karnataka.' But the apex court in its earlier decisions did undertake the exercise to lay down, whether in a particular case, an educational institution is a minority institution or not.' The court held that the Arya Samaj has a different script and therefore is entitled under Article 30 (1) because, Hindu is a religious minority in Punjab. It also said that, religious or linguistic minority need not be so in relation to the entire population in the country and it is enough if they are so in relation to the particular legislation or state concerned. Reading the text of the Constitution as well as judicial views in the aforestated case suggest that, to be protected as a minority group under clause (1) of Art. 30, the unit or universe is a particular state where such institution is situated. In different words, Marathi speaking people if establish an educational institution in any other state, then that institute could be protected as linguistic minority institution under Art. 30 (1). So would be the case with others in Maharashtra for eg., recently the Mumbai High Court upheld 50% reservation for Punjabis in Lala Lajpatrai College of Commerce and Economics, Haji Ali, Mumbai. 8 A Divisional Bench of Sam Variava and P.D. Upqasani Art. 27. In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. (1993) 4 S.C.C D.A.V. College, Jallandhar v. Punjab, (1971) 2 S.C.C Asian Age, 27th May 1988, Bom. p.11.

4 234 Cochin University Law Review (19981 J.J. granted minority status to the said college and authorised the college management to reserve fifty percent seats for Punjabi students in the college. The court passed the order while disposing the review petition filed by a trustee, Mr. Kamal Gupta, seeking to reserve seats for Punjabi students in the institute. It is to be noted that the institute only could claim to be a linguistic minority institute and not a religious one. It is submitted that this right, to establish linguistic minority educational institutions emanates from Art. 29 (1) of the Constitution; which in turn is subject to Cl. (2) of the same Art. 9 This particular aspect and relationship between the two provisions, we will discuss later. In case of religious minority educational institution, a different yardstick is to be applied. The earlier analogy raises another question that, to be a minority, what should be the proportion or ratio of that community with others or dominant one? A Christian community is a minority religious community in Maharashtra, but it may not be so in one or the other north eastern states. Similarly Muslim community is a religious minority community in Maharashtra, but, it is not the same in Jammu and Kashmir. Whether a determining factor shall be less than 50% population of that community in the state or varies from case to case? A more or less similar issue was addressed by the Supreme Court, in Brahmachari Sidheswar Shai v. State of West Bengal.' The three judge bench comprising of Kuldip Singh, Venkatchaliah and Saghir Ahmed J.J., considered the question inter alia that, can the citizens of India residing in the State of West Bengal who are professing, practising or propagating the religious doctrines and teachings of Ramakrishna and have become his followers claim to belong to a minority based on Rama Krishna religion which was distinct and different from Hindu religion and as such entitled to the fundamental right under Art. 30 (1) of the Constitution of India, of establishing and administering Supra n. 4. (1995) 4 S.C.C. 646.

5 C.U.L.R S.R. Bhosale & Dilip Ukey 235 educational institutions of their choice through Rama Krishna Mission or its branches in that state? In response to the question, the court replied in negative and observed that, Ramakrishna brought into existence no religion of his own which was called universal religion but gave the message of Vedanta. i.e. 'Service to God' as the universal principle basic to all religions and it was the message which was preached by Swami Vivekananda as the message given by his master based on Vedanta philosophy of Hindu religion. Hence citizens residing in the state of West Bengal, who are professing, practising or propagating the religious doctrines and teachings of Ramakrishna religion and as such are not entitled to the fundamental right under Art. 30 (1) of the Constitution of India." In other words the court was of the view that Ramakrishna mission is an integral part of Hindu religion, which is a majority religion in West Bengal and therefore is not entitled for the protection and benefit of Art. 30 (1) of the Constitution. The mere fact that the institution was founded by a person belonging to particular religion is not a conclusive question but it needs satisfactory evidence Chinappa Reddy J. had observed in A.P. Christian Medical Educational Society v. A.P." that, the minority institutions must_be educational institutions of the minorities in truth and reality and not mere masked phantoms. There also must exist a real positive index to enable the institution to be identified as an educational institution of the minorities. In the instant case, a society styling itself, Andhra Pradesh Christian Medical Society was registered in 1984 but there was no specific mention in the memorandum about education and training at all stages to be proposed to be imparted in the institution of that society as 'Christian Minorities' Educational Institutions. Ibid. paras 51,52. Rajeshri Memorial Basic Training School v. State of Kerala, A.I.R. 1973, Ker , S.C

6 236 Cochin University, Low Review [1998] It is pertinent to note that neither the memorandum nor the articles made any reference to any amount of corpus with which the society and the institutions proposed to he founded were to be financed initially. It was admitted during the course of argument, that society had no funds of its own apart from what was collected from the students." The medical college as per rules of Osmania University needed to have a full-fledged hospital with 700 beds, which would cost Rs. 7 crores to construct. The cost of other structures and cost of the necessary equipment and furniture would cost an additional sum of Rs. 18 crores. It is obvious that the society with no funds of its own could not possibly meet this expenditure. The learned court.:thus observed, we have no doubt that the society and the so-called institutions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional colleges. It was nothing but a daring imposture and skullduggery. By no stretch of imagination can we confer on it the status and the dignity of a minority institution. 15 In the very beginning Reddy J. described the case as, 'A brazen and bizarre exploitation of the naive and the foolish, eager and ready to be duped aspirants for admission to professional collegiate courses, behind the smoke screen of the right of minorities to establish and administer educational institutions of their choice.' The hon'ble court rejected the contention that, 'neither the government nor the university had the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill founded. The Government and the university and ultimately the Court have the right to pierce the minority veil. It is submitted that the apex court is very much correct in denying the 'minority status' to the medical institute. Mere claim of minority status by the educational institute is not sufficient to justify the Id., p Id., p

7 C.U.L.R S.R. Bhosale & Dilip Ukey 237 protection sought under Art. 30 (1). Similarly, there shall not be any commercial purpose or bad motive behind it. Whenever dispute occurs or question arises about the 'minority status' of educational institution, as pointed out by the apex court the government, university and finally courts do have the power to lift minority veil and see its real nature and character which we may call it as 'doctrine of lifting of minority veil'. In other words minority institution must serve the purpose for which it was established.' Right guaranteed by clause (1) of Art. 30 is a right to establish and administer educational institution of their choice. Once it is proved that an educational institution is established by minority and it is a minority educational institution, be it linguistic or religious, then the question comes about right to administer. It is submitted that right to administer, presupposes exercise and protection of right to establish educational institution. Both these rights are conjuctive and not an independent one. Right to administer is most critical and controversial right. Since the Constitution is silent about the nature of this right, i.e. whether it is subject to some restrictions or is an absolute one, we have to rely on judicial decisions. In Sidharajbhai v. State of Gujarat' the apex court considered and held this right as absolute. We shall discuss about the same afterwards. In case of affiliation or recognition, the two questions arise viz. (i) can recognition or affiliation be granted on terms involving a surrender of the rights conferred by Art. 30 (1)? (ii) Do the rights conferred by Art 30 (1) include the right to recognition or affiliation, and what are the consequences involved in applying for and obtaining affiliation? In St. Xaviers College Chikala v. Dist. Educational Officer, Hyderabad, A.1.R A.P. 64. A.I.R S.C. 540.

8 238 Cochin Universit y Law Review 11998] v. Gujarat', the nine judge bench replied to the first question that recognition or affiliation cannot be offered on terms which would involve a surrender of the rights conferred by Art 30 (1). The view adopted by the Court herein is a mere reiteration of the one adopted by Das C.J. In Kerala Education Bill, 1957'9. However, on the second question judges differed by 7:2, Beg, J. and Dwivedi, J. dissented, from majority and held that no inference could be drawn from Art. 30 (1) that there was anything like fundamental right of recognition or affiliation. Dwivedi J. observed that, there could be no doubt about it since the founding fathers had qualified the word 'choice' with the words "of their choice" they had taken special care to extend a guarantee to a minority. The learned Judge observed that had they intended to elevate the right of affiliation to the status of fundamental right they would have easily expressed their intention in clear words. But the majority was of the view that right under Art. 30 (1) can be meaningfully exercised only on recognition of secular education imparted by a minority institution, without which the right would be a "mere husk" or "a teasing illusion, a promise of unreality". Thus recognition and affiliation of minority institution is necessary if the fundamental right under Art. 30 (1) is to be effectively exercised. Ray C.J. and Reddy J. also said that, recognition or affiliation could not be a privilege granted by the State and the meaningful exercise of it under Art. 30 (1) would and must involve recognition,affiliation.2() It is submitted with great respect that the two different and contrasting views expressed in the instant case, the dissenting one adopted by Beg and Dwidedi, JJ. appears to be more correct 1.8. A.I.R S.C A.I.R S.C. 956 wherein, Das C.J. said that, the right to aid or recognition was not a fundamental right, but that aid or recognition can not he offered on conditions which involve a surrender of those rights. Supra n. 17 p

9 C.U.L.R S.R. Bhosale & Dilip Ukey 239 Hermeneutics of Art. 30 (1) does not sufficiently endorse majority's view and gives an impression that right to establish and administer educational institution includes right to recognition. As Dwivedi J. has said, affiliation is not a fundamental right but a statutory concept and may be obtained on the fulfilment of the conditions prescribed by statute. Therefore, there was no express grant of the right of affiliation and the right was not necessarily implied in Art. 30 (1). This view was also supported by Das C.J. 21 and said that there is no fundamental right to aid or recognition under Art. 30 (1). Similarly Venkatrama Iyer J. in his judgment argued that if a minority institution imparting wholly religious education was accorded recognition it would distract from the secular character of the State. 'If a minority institution is set up purely for giving religious education, there is no implied right to receive aid etc.; since the right under Art. 30 (1) can be effectively exercised without such aid." It may not be so, but as, it has been pointed out earlier, recognition or affiliation is a statutory matter, which could be granted on compliance of certain reasonable and regulatory conditions prescribed by the University. Therefore, it is submitted, the right of minority institution to receive aid, affiliation is not a fundamental right implied under Art. 30 (1) of the Constitution. Right to administer and admission of students Right to administer is a concomitant to right to establish educational institution by minority, which is most crucial and critical in nature. A view adopted by the Supreme Court in Sidhrajbhai' s is that, it is an absolute one and there could not be any restrictions imposed on it. Another view adopted by the apex court in In re Kerala Education Bill 24 is that, right the to Supra n. 18. Parmanand Singh, "Academic and Administrative Freedom of Minority Institution in India", (1997) 19 JILI at 302. Supra n. 16. Supra n. 18.

10 240 Cochin University Law Review [1998] administer does not include maladminister, and some regulations could he imposed on it on certain grounds viz., efficiency and standards of excellence expected of educational institution. They cannot decline to follow the general pattern of education under the guise of exclusive right of management. Similarly Dwivedi J. in St. Xavier's College' observed that, 'Constitution makers did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. The associate Art. 29 (2) imposes one restriction on the right in Art. 30 (1) and it is partly curtailed by former one". We shall turn later to the discussion about relationship between Art. 30 (1) and other provisions of the Constitution, particularly Art. 29 (2). The right to administer is the right to conduct and manage the affairs of the institution. Khanna J. put forward his principle from a different dimension. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or communication of an educational institution without qualified teachers. The state can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true of the efficiency of institutions, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed : they secure the proper functioning of the 25. Supra n. 17.

11 C.U.L.R S.R. Bhosale & Dilip Ukey 241 institution, in matters educational." The right to administer is the right to conduct and manage affairs of the institution cannot be displaced or reorganised if the right is to he recognised and maintained. Reasonable regulations however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Art. 30 (1).27 The views adopted by the Supreme Court in its various decisions and particularly in St. Xavier's clearly establishes the position that right under Cl. (1) of Art. 30 guaranteed to minority educational institutions is not an absolute, but could be controlled by some or the other restrictions. It is submitted that, St. Xavier's decision which was delivered by the bench of nine judges prevails over the one, delivered in Sidharajbhai. It is not disputed that the right under Art. 30 (1) could be regulated, but ambit and nature of regulations must be made clear. Excellence, efficiency, standard of education, sanitation, health and morality are some of possible grounds of regulation of the right to administer an educational institution by minority. Considering the comprehensive content and nature of Part - III, no fundamental right is absolute. Each and every right is subject to one or the other restriction. In other words, every right is coupled with duty.' Moreover, it is pertinent to note that, right available under Art. 30 (1) is a collective right and not an individual one. It is to be exercised for the benefit and welfare of the group of individuals. In the name of community or group/collective interest, no individual is entitled to pursue and fulfil his own interest, and hence, is to be regulated for advancement of people. In Gandhi Faiz-e-am College v. University of Agra' the Supreme Court, upheld the Statutes of the Agra University Ibid. Infra n. 33. See also Lil y Kurian v. Sr. Levina, (1979) 2 S.C.C. 124, wherein the apex court held that, Art. 30 (1) is not a charter of maladministration. Natural law jurist, Duguit had observed that, every rights emanates from duties. A.I.R S.C

12 242 Cochin Universit y Law Review ordinances which laid down that no private college would be accorded recognition unless its governing body included the Principal and the seniormost teacher. The court said that, the statute was facilitative, promotional and calculated to improve the one and temper of the administration of the educational institution. Krishna Iyer J. denied any absolute right to constitute the governing body, and observed, for some regulations may impinge marginally upon the composition of the administrative organ though manifestly meant to save the institution from mismanagement.'') But prior to this decision the Supreme Court held constitution of governing bodies in such a way as an interference in the minority's right to administer or management.' Similarly it was also held it is not necessary and required as per Art. 30 (1) that, constitution of Board of Minority's Educational Institution should consist of majority of members of minority community.32 One of the most contentious issue related with right to administer educational institution by minority, is admission of students. It is a settled principle, as stated earlier, that right to administer is not absolute but could be re -g ulated on certain grounds. 33 In St. Stephen College v. University of Delhi" five Judges Bench of the Supreme Court comprising M.H. Kania, Jagannath Shetty, N.M. Kasaliwal, M. Fatima Beevi and Yogeshwar Dayal, JJ. considered the question of students' admission in a Minority Educational Institution (MEI). The petitioner college was a religious minority college of which the admission programme was challenged in the Delhi High Court. The High Court ordered the college to receive applications from all students and not to announce the result. Aggrieved by the 30. Id I. See Rev. Bishop S.K. Patio v. Bihar, A.I.R S.C. 259 and State of Kerala v. Rev. Mother Provincial, A.I.R S Bihar Stale Madarasa Education Board Patna v. Managing Committee of Madarasa Hanlia Arabic College, A.I.R S.C Despite in several cases it was held as absolute. 34. A.I.R S.C

13 C.U.L.R S.R. Bhosale & Dilip Ukey 243 order, college filed the writ petition under Art. 32 to the Supreme Court. The question before the apex court was, whether a minority educational institution could lay down a criterion of admission different from the criterion prescribed by the University to which it is affiliated University rules prescribed the admissions on the basis of merit determined by the percentage of marks secured by the students in the qualifying examinations, while St. Stephen's college, affiliated to the University, laid the basis as marks secured in a qualifying examination plus marks obtained in the interview. The majority held that there was no fault in the test laid down by the college. Admission solely determined by marks obtained by students could not be considered a best available objective guide to future academic performance. Kasaliwal J. on the other hand, in his dissent felt that action of college in applying the method of interview contrary to the directions given by University was wholly arbitrary, wrong, illegal and violative of Art. 14. It could be no justification that college was a minority run college. Subsequently the Supreme Court had expressed serious doubts on the majority view of St. Stephens college in T.M.A. Pai Foundation v. State of Karnataka 35 and said that so long as a minority educational institution is permitted to draw students belonging to that minority to the extent of 50% seats even by going down the merit list," We see no reason why the State/ affiliating University cannot stipulate that the general students as well as minority community students must also be admitted on the basis of inter se merit determined on the basis of common entrance test. Art. 30 in our opinion, does not cloth a minority educational institution with the power to adopt its method of selection of students. In view of the disagreement with St. Stephan, it was also observed that, the matter should be referred to a larger Bench. 35. (1993) 4 S.C.C. 286.

14 244 Cochin Universit y Law Review The minority educational institutions cannot admit students solely on the basis of religion. Such preferential treatment to minority students candidates amounts to discrimination only on the ground of religion. It operates to single out candidates from non-minority community only on the ground of religion. The mandate of Art, 29 (2) is that there shall not be any such discrimination. Thus, the apex Court observed, 'The access to academic institutions maintained or aided by state funds is the special concern of Art. 29 (2). It recognizes the right of an individual not to be discriminated under the guise of religion, race, caste, language or any of them. This is one of the basic principles of a secular state. The discrimination based solely on the ground of a citizen's particular religion, race, caste, or having any particular language is absolutely prohibited by educational institutions maintained by the state or receiving aid out of State funds. It applies to minorities as well as non-minorities.' Admissions and fees were two important issues considered by the Supreme Court.' According to Unnikrishnan's judgment' Karnataka government framed a scheme governing admissions to professional colleges with an object to eliminate the evil of capitation fees and absolute discretion of management about the same. The state government applied the scheme to minority educational institution which they challenged as interference in the right to administer guaranteed under Art. 30 (1). Thought the Court referred the matter to the Chief Justice of India to constitute a larger Bench of seven judges to determine the issue, at the same time it also reiterated an interim order passed earlier by B.P. Jeevan Reddy.' wherein he said that fifty per cent of the total intake shall be filled up by candidates selected by the agencies of the state g overnment on the basis of a competitive exam/test, and secondly the remaining 50% of the intake may be Supra n. 33. T.M.A. Pai Foundation v. State of Karnataka, (1995) 5 S C C A.I.R S.C Supra IL 34.

15 C.U.L.R S.R. Bhosale & Dilip Ukey 245 regulated by the MEI to admit candidates belonging to the particular religious or linguistic minority. However, candidates so selected amongst the minorities shall abide by tuition and other fee prescribed by the state government. It is submitted that a rationalistic and pragmatic approach is needed to make right available under Art. 30 (1) as a meaningful. At the same time harmony and balance is also required amongst two conflicting and compelling rights under Arts. 30 (1) and 29 (2) of the Constitution. Management of affairs, selection of teachers and regulation of service Right to administer or manage the affairs has a very wide and broad perspective. It includes a variety of functions which need a range of powers, not in absolute terms but, which shall be exercised in reasonable manner, in turn result in maintenance of standards, excellence and efficiency of education in minority educational institution. The standards of education are not the part of management i.e. administration. ME1 cannot be allowed to fall below the standards of excellence expected of education under the guise of exclusive right of management. 4 The Supreme Court held that, upon a affiliation to a University, the minority and non-minority institutions must agree in the pattern and standard of education. Regulations which will serve the interests of the teachers are paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.' Selection and appointment of teachers is also one of the critical area of minorities right to administer under Art. 30 (1). In Kasaliwal, J. in supra n. 33. Supra n. 17.

16 246 Cochin Universit y Law Review Father Proost v. State of Bihar," S. 48 of the Bihar University Act, 1960 laid down that in cases of minority educational institutions, dismissal, removal. termination of service or reduction in rank of teachers were to he made with the approval of University Service Commission and of syndicate of the University. The Supreme Court held the right under Art. 30 (1) as absolute and the provisions of the Act as an interference of the right. In State of Kerala v. Rev. Mother Provincial' S. 56 of the Kerala University Act 1969 which regulated the conditions of 44 servir;e of the teacher of private colleges was challenged. The Supreme Court held that the provisions clearly took away the disciplinary power from the governing body/managing council and conferred it on the University and thereby robbed the founders of the institutions of the right which the Constitution guaranteed to them.' In St. Xaviers's, several provisions of the Gujarat University Act relatin -g, to termination of service of the staff were challenged.' Holding the provisions invalid the court observed that the power of the management to terminate the services of the staff was based on the relationship between the employer and the employee and any curtailment of the right of the management to dismiss employee would he had. It is submitted with great respect that the holding of the hon'hle Supreme court appears to be unconvincing on atleast two grounds. Firstly, A.I.R S.C A.I.R S.C S. 56 (2). No teacher could be dismissed, removed or reduced in rank by the governing body/managing council without prior sanction of the Vice Chancellor, (4) a teacher against whom disciplinary action was taken shall have a right of appeal to the University and on hearing by it University had a power to reinstate him The similar view was adopted by the court in DA V College, supra n. 7 and Lily Kurian cupra n Supra n. 17. The Vice Chancellor was given power to veto the action of a college in awarding punishment to members of college staff.

17 C.U.L.R S.R. Bhosale & Dilip Ukey 247 principles of natural justice do not constitute merely a forum for hearing, which was rather held as valid by the court, but also demands that such forum shall not act in a biased manner. Nemo Judex in causa sua is an equally important principle of natural justice. If the governing body / managing committee is to be the final adjudicator, then it amounts to the violation of aforesaid principle of natural justice. Secondly, the conditions of service, though based on employer and employees, always this relationship is governed by status and employers do not have an absolute right in the said relationship.' In other words termination of staff is not a total discretion of employer but appropriate procedure according to statutory provisions and principles of natural justice is to be followed. The three judges Bench of the apex Court in All Saints High School v. Govt. of A.P. 49 expressed somewhat similar view as stated above. In the instant case several provision of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975 were challenged on the ground of violating Art. 30 ( I). Holding section 6 as valid. The learned CJ observed that it is difficult to share the view that retrenchment of teachers is purely the domestic affair of minority institutions and that the decision of the management in matters of retrenchment of teachers was beyond the scope of statutory interference by reason of Art. 30(1). S.6 aimed at affording a minimal guarantee of security of tenure of teachers by eschewing the passing of mala fide orders in the garb of retrenchment." Teachers are of paramount importance and central to the good administration of educational institutions. They are the See the provision of contracting out in S. 25 of the Minimum Wages Act A.I.R S.C (1., p It is also to be noted that some other provision of Act were held as valid.

18 248 Cochin Universit y Law Review creators of future humanit y and uenerations which could serve - society/nation with dedication and help it to prosper, progress and develop in every field of human life. It is therefore, sinequa-non that to impart education, values and principles. teachers are to be selected properly. It is not disputed that minority educational institutions have right to appoint teachers of their choice. But at the same time qualifications prescribed by law is necessarily to be followed. As it is very much clear that right to administer could be regulated, selection of teachers shall be treated subject to the regulation., Minority educational institutions shall not claim complete immunity froth the rules or procedure prescribed by State/University in selection matters. Vice-Chancellor's nominee could be appointed as one of the experts of selection panel. This measure shall not be perceived as restrictive, but in reality, it is in the interest and, for the benefit of minority educational institution. At the same time, it shall be open for government or University to frame rules and regulations governing the conditions of teacher's service as well as of the other staff. In such a case the purpose is not to interfere with the internal administration of autonomy of the institution but merely to improve the excellence and efficiency of the education. A good education can be received only if the teachers are qualified and experienced and appropriate steps are necessary to make them teach students with devotion and dedication and put them above all controversy. Inter-relation between Art. 30 (1) and other provisions of the Constitution Right guaranteed by the constitution under Art. 30 (1), eventhough it appears to he absolute in the absence of any express limitations laid down therein, as it is pointed out earlier, this right is not absolute but could be regulated on certain grounds and for certain reasons. Like maintenance of standards and efficiency of education, health, sanitation etc. Still the question remains that, is there any interrelationship between Art. 30 (1) and other provisions, particularly from part III like interrelation-

19 C.U.L.R S.R. Blzosale & Dilip Ukey 249 ship between Arts. 14, 19 (1) and 21? or whether Art 30 (1) is to be read and interpreted in isolated manner? It is to be noted that once the college is established by minority educational institution affiliated to the University and begins to receive aid out of state funds, it comes within the purview of clause (2) of Art 29. The issue involves the citizen's entitlement as a part of his personal liberty not to be discriminated on the ground of religion as against the minority's right in their own educational institution. It is submitted that, the Constitutional concept of religious autonomy under Art. 30 (1) has to be balanced with constitutional guarantee under Art. 29 (2). Both the provisions operate in the same field viz., education. The right guaranteed to minorities under Art. 30 (1) to establish and administer educational institutions of their choice cannot be read in isolation, and it has to be interpreted in a manner that it does not destroy the right in Art. 29 (2).5 Thus the Supreme Court observed that, the framers of the Constitution were fully knowing about the necessity of granting protection of interests of minorities but at the same time they wanted that if any educational institutions are run by receiving aid out of state funds then no citizen could be denied admission on grounds only of religion, race, caste, language or any of them. The rights conferred on the minorities under Arts. 29 (1) and 30 (1) are enabling ones while clause (2) of Art. 29 is a mandate that, in the matter of admission in any educational institution maintained by the state or receiving aid, all citizens would be treated equal and shall not be denied admission on grounds only of religion, race, caste, language or any of them. The right guaranteed under Art. 29 (2) is a special right which would prevail over the general right guaranteed to -the minorities under Art. 30 (1).5' The fact that Art. 29 (2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the Supra n. 32, para 71. Ibid., para 131, Kasaliwal, J. in his dissent.

20 250 Cochin University Law Review special right guaranteed to minorities in Art. 30 (1). Art. 29 (2) deals with non-discrimination and it is available only to individuals. The general equality by non-discrimination is not the only goal of minorities. The minority rights under the majority rule implies more than non-discrimination and indeed it begins with non-discrimination. Protection of interests and institutions and advancement of opportunity are just as important. Differential treatment that distinguishes them from the majority is a must to preserve their basic characteristics. India is a multicultural and multireligious society. It is an extraordinary pluralistic and complex society with different religious minorities. Besides, there are linguistic aspirations and caste considerations. There may be individuals in the minority group who want to assimilate into the majority, but the group itself has a collective interest for non assimilation as a community. This appears to be the chief reason for which Art. 30 (1) was incorporated as a fundamental right.52 The learned Judge further observed that Art. 30 (1) was incorporated to secure to the minorities a fair deal in the name of religion only. 53 It is submitted with great respect that, it is not a proper interpretation of Art. 30 (1). This right is not only guaranteed to religious minorities but also to linguistic minorities. To say, it was incorporated to secure to minorities a fair deal in the name of religion only, is against not only the spirit, but also the letter of the Constitution. There are shared understandings and expectations of the founding fathers. The constitutional construction without such concern and consideration and without such shared understanding and expectations is bound to be inadequate. It would be profoundly antihistoric and likely to produce constitutional nihilism with calamitous consequences.' As has been pointed out, Art. 30 (1) is controlled by Art. 29 (2) but, it must be noted that such control shall be subject to Shetty, J. Ibid., para 85. Ibid., para 92, p Ibid., para 93.

21 C.U.L.R S.R. Bhosale & Dilip Ukey 251 rules of admission prescribed by a competent authority, like 50% seats for students of minority community and remaining for others etc. MEI college receiving grant from the State is also subject to Art. 15 (4) which provides an exception to Art. 29 (2). Art. 15 (4) enables the State to make any special provision for the advancement of any socially and educationally backward class of citizens in the matter of admission." In view of protective measures guaranteed to minorities under Art. 30 (1) the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject to University standards. The minority institutions shall make available at least 50% of the annual admission to members of other communities. If such minority educational institution is wholly maintained out of state funds then no religious instruction could be provided and Art. 28 (1) is a bar on it, of course, with an exception provided by clause (2) of the same provision." That does not mean that religious instruction cannot be provided in religious MEI but, it would be subject to clause (3) of Art. 28." In other words, MEI is free to impart religious instructions to its students but when it is recognised or receiving aid out of state funds then it cannot compel students from other communities. It clearly shows that Art. 30 (1) is also subject to clause (3) of Art. 28 like Art. 29 (2) of the Constitution. It is also submitted that whenever a religious denomination belongs to minority religion establishes religious institution Ibid., para 131. Art. 28 (1). No religious instruction shall be provided in any educational institution wholly maintained out of State funds (2) Nothing in clause (1) shall apply to an educational institution which is administered by the state but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. 57. Art. 28 (3). No person attending any educational institution recognised by the state or receiving aid out of state funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution.

22 252 Cochin University Law Review (1998] under Art. 30 (1) would be subject to Art. 26 of the Constitution." The thesis advanced, it is to be noted, would not be applicable to minority educational institution established by linguistic minority. It simply meant that, whenever MEI established by religious minority under Art. 30 (1), it is subject to public order, morality and health as enumerated in Art. 26. The premise which was made at initial stage that right under Art. 30 (1) is not absolute but subject to some regulations as well as other provisions of part-iii appears to be correct. In view of all this a thesis could be developed is that, right to establish and administer under clause (1) of Art. 30 is not an absolute but has to be exercised subject to Arts. 15 (4), 26, 28 (3) and 29 (2) of the Constitution. Hermeneutic of the Constitution and particularly part-iii, as well as Judicial determinations related with these provisions also endorse the view adopted above. Absolute rights theory has been rejected by the Constitutional framers and the Indian Judiciary in a variety of decisions. Moreover, even in matters of religious autonomy and preservation of the same, it has not been allowed at the cost of public order, morality, efficiency etc. Recently the apex court in several cases denied the immunity to religious denominations from state's interference on the basis of maladministration and mismanagement of the affairs in it.' Therefore, it is submitted, the same shall be made applicable to educational institution based on either religious or linguistic minorities. However, there shall be reasonable grounds as adumbrated earlier, for the state action. It is pertinent to note that, Art. 30 (1) is not an island on its own but there is a definite Art 26 : subject to public order, morality and health, every religious denomination or any section thereof shall have the right...(a)...(b)...(c) & (d). See Pannalal Piti v. A.P. (1996) 8 S.C.C. 606: Shri lagannath Temple, Puri Management Committee v. Chintamani Khuntia, (1997) 8 S.C.C. 422 etc.

23 C.U.L.R S.R. Bhosale & Dilip Ukey 253 and clear nexus or relationship, between it and Arts 15 (4), 26, 28 (3) and 29 (2) of the Constitution. Conclusion India is very much a nation in the making. There are linkages and connections in the multilayered mix up. There are shared understandings and expectations of founding fathers. These expectations we have to pursue through constitutional mechanism. A comprehensive survey of the entire part-iii of the Constitution clearly shows that they did not intend to confer absolute rights on a religious or linguistic minority to establish and administer educational institutions. Having maintained that, the said right is not absolute but subject to some limitations, though implied one, the Supreme Court in various decisions upheld certain regulations in respect of minority educational institutions - Regulations prescribing qualifications of teaching and non-teaching staff. Regulations requiring the minority educational institutions to appoint teachers only from the panels prepared by the State or University authorities. Regulations regarding pay and pay scales and mode of payment of salaries of teaching and non-teaching staff. Regulations requiring compliance with provisions of natural justice before terminating teachers services either as a penal measure or otherwise.' It appears that the tenor of most the Supreme Court Judges is that, the minority educational institutions are not free from the regulatory power of the state. Krishna Iyer J. observed that, 60. Paras Diwan and Piyushi Diwan, Human Rights and the Law (1996), p. 378.

24 254 Cochin University Law Review [1998] "Hands off administration altogether is a tall call today; but hand-cuff managements into uniformity is also not the correct rule. A benignly regulated liberty which neither abridges nor exaggerates autonomy but promotes better performance is the right construction of the constitutional provision. Such an approach enables the fundamental right meaningfully to fulfil its tryst with the minorities' destiny in a pluralist polity. That is the authentic voice of Indian democracy The constitutional estate of the minorities should not be encroached upon, neither allowed to be neglected nor maladministered.6' If this is not done it might lead to religious bigotry which is the bane of mankind. In nation building process, sectarian education would be inconsistent with the concept of secularism and equality embedded in the Constitution. 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 develop 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. (emphasis added). Hence, we advocate for a suitable amendment in Art. 30 (1) which would enable the Universities to exercise specific, clear and reasonable/rational control over all minority educational institutions.' A meaningful right must be shaped, moulded and created under Art. 30 (1). At the same time there is a need to strike a balance and harmony between this right and other provisions of the part-iii, between traditions of the past and the convenience of the present, between society's need for stability and its need for change, so that there could exist peace and prosperity in it. Supra n. 29. P.B. Gagendragadkar in his work, The Philosophy of National Integration : Jawaharlal Nehru Memorial Lectures, adopted the same view.