Sandhya sent me Bharat Digest (a summary of Supreme Court Cases) that contained the relevant case law. Bramchari Sidheswar Shai and Others vs. State of West Bengal 1995 4 SCC 646: AIR 1995 SC 2089. What are the facts of the case? Briefly –
As the writ petition filed in the Calcutta High court, which has led to the present appeals related to the Ramakrishna Mission Vivekananda Centery College at Rahra – Ramakrishna Mission College it would be useful to know how the college was set up. Based on a Central and State govt grant on mission land was constructed the said college. The Deputy Secretary to the Govt of West Bengal wrote to the Registrar of the Calcutta University intimating him of the three-year degree college to be set up under the auspices of the Ramakrishna Mission and its readiness to manage to the college through a Governing Body to be constituted by it. The University granted affiliation to the proposed college but also accorded approval to Governing Body of that College as constituted by Ramakrishna Mission. Thereafter, the Governing Body of the College as constituted by the Mission from time to time with special approval obtained from the State Govt and University, continued to administer the affairs of the College. The Mission did not have a governing body modeled on the common pattern of governing bodies of sponsored colleges. However, in 1978 the Deputy Secretary to the Govt of West Bengal stated that the govt was feeling the need for revising the existing pattern for composition of Governing Bodies of govt sponsored colleges on a standard pattern excepting where the college concerned had a special constitution on the basis of Trust Deed or where the college was run by Missionary Societies on the basis of agreement with respective Missions.
In 1980 when a new principal Swami Shivamoyananda was appointed the Teachers Council went on strike, took over the management of the College and prevented the new principal from functioning but also made Prof A.R.Das Gupta to function as principal. The Mission and Secretary instituted a civil suit seeking a declaration that the functioning of Shri Gupta as principal and 14 professors was illegal.
The teachers etc in the High Court sought for the issue of a writ asking the West Bengal govt to reconstitute the governing body according to the standard pattern referred to above, a writ restraining the new principal from acting as principal of the Mission college & a writ declaring that the Mission college is governed by the W.B. Act of 1975 & 1978.
The Mission resisted these writs. Meanwhile the Calcutta University sent the Mission notices for reconstituting the governing bodies of three other colleges run by the mission. A learned single Judge of the High Court dismissed the notices issued by the Calcutta University on the premise that the Mission comprised of followers of the Ramakrishna Religion and were thus protected under article 30 (1) of the Constitution. The aggrieved parties i.e. the teachers, Calcutta University and West Bengal govt filed appeals but a Division Bench of the High Court dismissed the appeals agreeing that the followers of the Mission were a minority based on religion and entitled to protection under article 30 (1) of the Constitution.
The matter went to the Supreme Court. Swami Ramananda set out the features of Ramakrishna religion. The Court held that Ramakrishna Religion was very much part of Hindu religion and thus could not like Christian colleges, avail of Constitutional benefits granted by article 30 (1). However, the Court said that considering the special circumstances in which the College at Rahra came into existence, ‘we feel the interests of Justice may suffer by directing the State Govt to constitute its own governing body on standard pattern of the usual sponsored colleges, as prayed for by the writ petitioners. But, the view expressed herein shall not come in the way of the State govt wanting to change their earlier arrangement with the Mission college.
Articles 19, 25-30 Chapter 2
This chapter enumerates articles 19, 25 to 30 as they appear in the Indian Constitution.
19. Protection of certain rights regarding freedom of speech, etc.-
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; subject to
(g) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4 [the sovereignty and integrity of India,] the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.]
3. Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 [the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
4. Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 [the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
5. Nothing in 5 [sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
6. Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 1 [nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise].
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
27. Freedom as to payment of taxes for promotion of any particular religion.-
No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.-
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.
3. No person attending any educational institution recognized 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 or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
29. Protection of Interests of Minorities
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 out of State Funds on grounds only of religion, race, caste, language and or any of them.
30. Right of minorities to establish and administer educational institutions.-
1. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
[(1A) In making any law providing for the compulsory acquisition of any property of any educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.]
2. The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Historical Background Chapter 3 This chapter tells you about the various Acts passed by the Brits to give the Indians control over their own destiny. The first act was passed in 1858 and the last in 1947. It also tells you how the Brits accentuated the Hindu Muslim divide by supporting the separatists tendencies of the Aligarh Muslim Movement and creation of Separate Electorates for Muslims, Christians, Sikhs etc. Brit decisions like these put the makers of the Constitution under Undue Pressure to make constitutional provisions for protection of minorities that do not exist in U.S.A. or England.
1. For our purpose we shall start from the year 1858 when the British Crown assumed imperial control over India and their Parliament enacted the Government of India Act, 1858. The Act serves as a starting point because it was dominated by the principal of absolute imperial control without any popular participitation in the administration of the country. The Indian Council Acts of 1861 introduced a grain of popular element in so far as it provided that the Governor-General’s Executive Council, which was so far composed exclusively of officials, to include certain non-official members, while transacting legislative business as a Legislative Council. However, the Council was neither representative nor deliberative in any sense.
2. The Indian Councils Act of 1892 introduced two changes. One non-official members of the Legislative Council were to be nominated by the Bengal Chamber of Commerce and in Provincial Councils they were to be nominated by certain local bodies such as universities. Two Councils were to have the power of discussing the annual statement of revenue and expenditure.
3. The first attempt at introducing a representative and popular element was made by the Morlry-Minto reforms that were implemented by the Indian Councils Act, 1909. The size of Provincial Councils was enlarged by including elected non-official members so that the official majority was gone. An element of election was also introduced in the Legislative Council at the Center but the official majority was maintained.
On one hand there was a positive system of election provided by the Act of 1909 but on the other, for the first time was provided a separate representation for the Muslims, sowing or feeding further the seeds of separatism. It cannot be overlooked that this idea of separate electorates for Muslims was just after the formation of the Muslim League as a political party in 1906.
Now lets digress a wee bit to understand why did the Brits create separate electorates? (go to History section and read full article titled The Aligarh Movement).
The Muslims had taken an active part in the Mutiny of 1857 because of which the British were suspicious / did not trust them. Also their economic condition deteriorated with the loss of political power to the British and reluctance to take to modern education. People like Sir Syed Ahmed Khan (founder of the Aligarh Muslim University) realized the need for education, political awareness. As soon as the Muslims became politically conscious they started separate organizations of their own. A Muhammadan Association was started in Calcutta before 31/01/1856. The Hindus regarded this separatist tendency as quite natural since they were a separate unit. Gradually the Muslim leaders realized the value of English education. Although Muslims took to modern education in larger numbers the gap between the two communities continued to exist, rather large actually.
The differences got accentuated in connection with the legislation for local self-government on elective basis. It is on this occasion that for the first time a demand was made for separate representation of the Muslims. Said Muhhammad Yusuf on 3/05/1883 “But it would be an advantage and more fit recognition of the claims of the Muslim population if provision could be made in the Bill for the election of Muslims by reserving a certain number of membership for that community”.
Sir Syed Ahmed Khan took upon himself the responsibility of bridging the gulf, bringing about a political rapprochement between the Brits and Muslims. To achieve the first objective he urged the Muslims to give up their fruitless, vindictive and sentimental opposition to the British. He gradually convinced them that their future interests depended entirely on favors from the govt, which could happen only if they cooperated with the Brits. On the other hand he persuaded the Brits that the Muslims were not disloyal to the crown and the Muslims got swayed in 1857 by leading the war against the Brits but with a little tact, generous forgiveness by the Brits could change the Muslims into Brit supporters.
This offer by Syed Ahmed was perfectly timed. Happy to get rid of Muslim rule, the Hindus welcomed Brit rule that made the rulers favor the Hindus initially. But two generations of Western education had aroused revolutionary ideas in the Hindu mind called anti-Brit. Divide and rule was the Brit mantra. So they seized the offer by Syed Ahmed of enlisting the support of the politically undeveloped Muslim community. They decided to hold it as a counterpoise to the progressive Hindu community. A fair idea of the nature and extent of Brit thought is given by Hunter’s book, The Indian Musalmans, published in 1871.
At a speech at Meerut on 16/03/1888 Syed Ahmed referred to Hindus and Muslims not only as two nations, but as two warring nations who could not lead a common political life if ever the Brits left India. He said, “Now suppose that all the Brits were to leave India, then who would be the rulers of India? Is it possible that under these circumstances these nations, the Muhammadan and the Hindu could sit on the same throne and remain equal in power. Most certainly not. It is necessary that one of them should conquer the other and thrust it down. To hope that both could remain equal is to desire the impossible and the inconceivable”. Sachin Sen pg 42.
These thoughts are fuelled with the appointment of a Brit Principal of the Aligarh Muslim College. The principal Theodore Beck gave up a life in England to serve the Indian Muslims. He took charge of the Institute Gazette, the literary organ of the Aligarh College and edited it on behalf of Syed Ahmed.
Beck poured forth venom against the Bengalis for their advanced political and social ideas. In issue after issue he published articles whose central idea was that India contained two or more nations that the Parliamentary govt was unsuited to India, and in the event of it being granted, the Hindus, who formed the majority “would be absolute masters as no Muhammadan Emperor ever was”. Muslim League pg 4.
So friends what I am saying is that the announcement of Separate Electorates in 1909 was a culmination of the grand British plan to divide India into two camps Hindus and Muslims. The divide already existed they added fire to it. Part of Brit strategy. In 1947-50, they did a repeat in Jammu and Kashmir. To know read ‘Who created the Jammu and Kashmir Mess’ by Claude Arpi, section Wars and Foreign Affairs.
4. The next landmark was the Montage-Chelmsford Report, which led to the enactment of the Government of India Act, 1919. The main features were -
Dyarchy in the Provinces whereby Responsible government in the Provinces was sought to be introduced without impairing the responsibility of the Governor (through the Governor General).
Relaxation of Central Control over the Provinces – there were state and central subjects, revenue was divided too. However, this was not a federal distribution of powers since the Central Legislature retained power to legislate for the whole of India.
The Indian Legislature was made more representative. There was an Upper House (Council of State) consisting of 60 members of whom 34 were elected and a Lower House (Legislative Assembly) composed of 144 members of whom 104 were elected. The electorates were divided on communal lines.
5. Due to various shortcomings of the 1919 Act, the Brits appointed a commission in 1930 headed by Shri John Simon. The Report was discussed by a Round Table Conference consisting of delegates from Britain and India. A White Paper prepared based on the results of the Conference was examined by a Joint Select Committee of the British parliament and the Govt of India Bill was drafted thereafter and passed as the Government of India Act, 1935.
This Act went another step in accentuating the Hindu Muslim Divide by prescribing separate electorates on the basis of the ‘Communal Award’, which was issued by Mr Ramsay MacDonald, the Brit PM on 4.8.1932 on the ground that the two communities had failed to come to an agreement. From now on the agreement between Hindus and Muslims was continuously hoisted as a condition for any further political advance.
The Act of 1935 provided separate representation for Muslims, Sikhs, Europeans, Christians and Anglo-Indians. Also the word Scheduled Castes had its origin in Para 2 of the Scheduled Castes Order, 1936 which had been issued in pursuance of the direction in Para 26 of Sch I of the Government of India Act, 1935 – to determine the classes who were depressed classes. (called Harijans by Gandhi). It was an environment that created a serious hurdle in the way of building national unity, which the makers of the Indian Constitution found it almost impossible to surmount even after the Muslims had partitioned for a separate country. You see the Brits divided India vertically, a division that has only compounded with time and problem after problem thereafter. In the last decade or so backward classes have begun to be called Dalits. Wonder who conned this word.
6. Lastly was the Indian Independence Act of 1947 that provided for India and Pakistan with a Constituent Assembly for each Dominion that had unlimited powers to frame or repeal any Act. The Constituent Assembly which had assembled for the first time on 9/12/1946 reassembled on 14/8/1947 as the sovereign Constituent Assembly for the Dominion of India. The third and final reading of the Constitution was finished on 26/11/1949. It came into force on 26/1/1950.
Friends these are only a few instances of how the British encouraged / supported separatist tendencies amongst Muslims. If the British are so concerned about Minority rights why have they not, within their own country, created separate electorates for Muslims, Roman Catholics, Hindus and Irish Protestants to name a few!