In minority institutions the govt cannot nominate students.
The govt cannot mandate the reservation of seats for Backward Classes.
An aided minority institution is not meant for the exclusive benefit of its own community.
A minority institution can give preference in admission to its own students.
However, in aided minority institutions 50 % of seats must be available to non-minority students. (A Supreme Court decision in the St Stephens College case, not specifically laid out in the Constitution).
Minority institutions can provide an admission procedure whereby 15 % marks are to be allotted by interviews.
Neither the State nor the University can compulsorily impose a medium of instruction.
However, the State can provide for study of the State language as compulsory second language.
Minority institutions would be bound to follow the syllabus as laid down by the State but the State cannot impose such syllabus, which directly erode or contradict minority rights. (I wonder who lays down the syllabus for the Madrassas).
Neither aided nor unaided minority institutions can charge fees which are higher than those prescribed by the state but they would be free to approach the authorities to increase the fees if the circumstances exist.
E. Rights of Management
Provision that a minority institution must have a managing committee registered under the Society’s Registration Act, 1860 and have written Byelaws is valid.
But the State cannot regulate how a managing committee of a minority institution is to be constituted.
The condition that a college should have a governing board, which is approved by the University and has members of University on it, cannot apply to minority colleges.
The State cannot direct a minority institution to appoint an outsider as a Secretary.
Provision allowing the Government to takeover the minority management even for a limited period is bad.
Provision regarding inspection, keeping of accounts and general supervision by an outside authority is valid.
The State can prescribe the syllabus for an educational institution.
Provisions prescribing the minimum infrastructure for an educational institution are valid like healthy surroundings, number of classrooms, qualified teachers, adequate space, and laboratories.
The Right to administer does not include a right to maladminister as referred to above.
Hindu Schools Chapter 9
Friends after reading the above you might ask a question, listen what you say is cool but on a day to day basis what are the matters that Hindu schools have to grapple with that minorities do not have to. Some of them are –
They are subject to greater control and supervision by the state govts.
Their right to recognition and affiliation can be regulated on grounds of public interest or national interest, which is not the case in minority institutions.
In case of mismanagement an administrator can be appointed or the management can itself be transferred to another body, which is not the case in minority institutions.
The State can insist on having its own nominees on the managing body or in the management of the institution, which is not the case in minority institutions.
The State can mandatorily prescribe the procedure for appointment of Head Masters/Principals, which is not the case in minority institutions.
The schools would have to follow the Reservation Policy for Scheduled Caste/ Tribes w.r.t. students and teaching/non-teaching staff which is not the case in minority institutions.
The State govt can nominate students, which is not the case in minority institutions.
The State/University can control selection Committee for teachers, which is not the case in minority institutions.
On the basis of a cogent policy the State can refuse to give permission to start or recognize a new educational institution, which is not the case in minority institutions.
The school has to seek approval of the State govt or University in the matter of appointment or disciplinary action against any member of teaching or non-teaching staff of the institution, which is not the case in minority institutions.
In the case of a Society establishing an educational institution it needs to seek approval of the State govt for any amendment in its rules, regulations or byelaws framed for running the institution in addition to the procedure followed for such amendments under the Societies Registration Act, 1960. In the case of minority institutions no such approval is required.
Do Non-Minorities have a fundamental right to establish and administer educational institutions that are secular in nature? NO
Articles 26 and 29 (1) are the relevant articles for this purpose.
26 - Subject to public order, morality and health, every religious denomination or every section shall have the right – (i) to establish and maintain institutions for religious and charitable purposes.
29 - Any section of 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 preserve the same.
Art 26 deals with religious groups while art 29 (1) deals with linguistic and cultural groups. One argument that these articles give the same rights concerning educational institutions to non-minority religious and linguistic groups as are given by art 30 (1) to minority religious and linguistic groups. Neither art 26 nor art 29 talk about educational institutions although I do think that the provisions of art 29 can be best met through an educational institution.
Art 26 gives a right to non-minority groups to maintain institutions for charitable purposes can be extended to mean educational institutions. However, the limitation is that provided they can impart religious training only.
What is ground reality? Since open-mindedness is amongst the most important characteristic of Hinduism Hindus have taken to secular education soon after it was introduced by the British in the first half of the 19th century. Secular education does not include religious training for Hindus. On the other hand Muslims being more conservative provide education through madrassas mostly, that too mostly religious in nature. Since they are a minority the state funds this education. Thus the State ends up funding Islamic religious teachings but does Hindus are unable to learn their religious teachings since secular education excludes teaching of Hindu scriptures.
Further and more importantly a large section of the Hindus have grown without any exposure or teaching of their culture, religion and philosophy. The education that my parents had in 1930-40’s included exposure to Indian culture and tradition. Those of us born after 1960 more so in the 70-80’s had negligible exposure to Indian culture resulting in our becoming highly Westernized and ignorant about our culture and philosophy.
Thus, non-minority religious groups do not have a fundamental right to establish and administer an educational institution, which may be secular in nature. Is this what the framers of the Constitution intended?
Legal View Chapter 10 This chapter has two parts to it. One and two are the words of two learned men Shri M P Jain and Dr Durga Das Basu.
1. Quote M P Jain “The position as it has developed is that, in effect, institutions of general education established and administered by religious or linguistic minorities enjoy a much more privileged position than those run by the majority in the matter of regulation by the government or university. The Supreme Court has given a very generous interpretation to art 30 (1) in favor of minorities. While strict supervision can be imposed on majority institutions, the same cannot be done on minority institutions. It stands to reason whether such a result was envisaged by the framers of the Constitution. Was it not their intention to buttress by art 30 (1) the type of institutions contemplated by art 29 (1). The Supreme Court however specifically rejected this point.
An unhappy aspect of the present day situation that it has become difficult to ensure security of tenure to teachers in minority institutions. In this connection, rejection by the Supreme Court, in the St Xavier’s College case, of the concept of arbitration between college management and a member of the staff appears to be a very extreme view to take.
As a final comment, it needs to be said that the right of the minority under art 30 has become, by judicial interpretation, synonymous with the right of the management of an institution to claim freedom from government or university regulation. The Right to establish institutions of their choice has also come to mean that the managing bodies can administer these institutions as they like”.
2. Quote Dr Durga Das Basu How have articles 29 and 30 (1) promoted aggressiveness amongst minorities?
“It would be incorrect not to recount ominous trends which have been revealed since the General Election of 1980 as regards the ever-aggressive demands of the religious minorities – which run counter to the very foundations of the existing Constitution. The most grievous feature of post-Independent India is that the Minorities have held up their vote as bait and political leaders of the majority community have indiscriminately swallowed that bait in their Election Manifestos. It must be pointed out that to accept such anti-nationalist demands of the Minorities (which, though sponsored by the Muslims, are being reiterated by others such as Christians, Sikhs would be to tear India into pieces, with a second Pakistan for Muslim-majority areas and so on. It is a matter of regret that the manifesto of the Congress I for the 1991 elections promised reservations for minorities in government service and the Armed Forces. The formation of Muslim Majority districts in Kerala and Bihar is another step in furthering separaticism.
Another demand of a minority community is that the Minority Commission, set up administratively, during the Desai regime, should be given a constitutional footing and a binding force to its recommendations. Parliament has enacted the National Minorities Commission on 17/5/1992 but its recommendations have not been given any obligatory force.
Another demand advanced on behalf of the Muslims is that the Directive in art 44 for establishing a uniform civil code should not be applicable to the Muslims who should be allowed to be governed by the Shariat as their personal law. (The Jamiat-ulama-I-Hind Statesman dt 2.10.1979). This again is going back. It is curious that while polygamy has either been abolished or controlled by Islamic states like Turkey and Bangladesh Indian Muslims are pressing to uphold it’s as their religious right. I wonder whether the Shariat is to be implemented in criminal cases too.
Once the demands of one minority are met, the others too would ask for more. At the time of partition it was Muslims, then Christians of Northeast, next Sikhs, who knows what next. Scheduled castes that converted to Buddhism wanted to continue availing reservations for S.C.’s is a case in point. Whatever may be the merits of the case the National Front govt allowed in 1990 such converts the benefits of reservation? It may be noted that the word Scheduled Castes is not a coinage of the Constitution of independent India but 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).
In the international sphere, the demand for special safeguards to protect the cultural or linguistic identity of minority communities has emerged from the principle that owing to war or like circumstances causing territorial changes without the consent of people residing in those territories, the identity of such communities who have been torn as under by circumstances beyond their control should be preserved from ethnic extinction, by affording safeguards through international Charters and national Constitutions. (Very rightly said, why are Hindus in U.K. not called minorities and given special rights)? The partition of India, which left a portion of the Muslim community in India, took place in the opposite way. For the Muslims who stayed back the partition was the seeking of their own community and not the result of any circumstances beyond their control, such as the First and Second World War, which created the international minority problem in the world.
Those who believe that communal harmony and unity of India can be achieved only by granting more and more extra-Constitutional privileges forget the adage –‘once an infant always an infant’ and also the fact that communalism is a vicious circle. There can be one nation when we have only one Constitution for all”.
Friends I point I am trying to make is that article 29 and 30 (1) have by allowing minorities extra constitutional provisions only divided the country further. When a section of the population has extra constitutional benefits based on religion it is human nature to strive hard to maintain a separate identity and fight for more. The Preamble ‘unity and integrity of the nation’ is a mirage. Articles 26 to 30 ensure that religious and linguistic minorities cling to constitutional benefits national unity and integrity be damned.
Summary Chapter 11
The British are responsible for accentuating the Hindu Muslim divide starting the 1860’s. Part of their strategy of divide and rule. They cemented it by introducing separate electorates for Muslims in 1909. They divided the nation further by introducing in 1935 separate electorates for Sikhs and Christians also. Through the same Act for the first time the word Scheduled Caste was introduced.
Three key words Religion, Secularism and Minority form the basis of concessions under articles 25 to 30. One the Constitution has not defined none of terms leading to confusing and generous interpretation by various Courts. Two these terms are alien to India.
By virtue of not being defined in the Constitution Secularism has become the most abused words in India. The Courts have not defined it exhaustively either. The words used by Dr Radhakrishnan above are ‘no one religion should be given preferential status’. Yet it is only Indian Muslims that are given a subsidy for undertaking the Haj. If we are indeed a secular country why State Governments must be managing Hindu temples. Money donated by Hindus to their temples goes to the State Treasury and indirectly used to fund madrassas but the government dare not touch monies collected by madrassas. That is what secularism has come to mean in India. Germany is a secular country inspite of its majority community the Christians paying a tax to the Church. The Queen is the head of the Church of England and Head of State, yet we dare not call England a communal country?
The word Religion has been used to divide us into Hindus, Muslims and Christians. Sri Aurobindo rightly said religion is a Western concept and alien to India. The Indian equivalent is Dharma. Further on the same premises followers of Indian religions are being divided into Hindus, Sikhs, Buddhists and Jains. What unites them is the Indian concept of Dharma that has not found a place in the country’s Constitution.
Who is a Minority? Is he to be defined in the context of a country, state, and city? The internationally accepted definition says ‘people who are displaced owing to war or like circumstances causing territorial changes without the consent of people residing in those territories, the identity of such communities who have been torn as under by circumstances beyond their control should be preserved from ethnic extinction, by affording safeguards through international Charters and national Constitutions’. But in India anyone who is not a Hindu has come to become a Minority.
Linguistic Minorities – special Constitutional safeguards have been provided. As a nation we seem to have forgotten that Sanskrit is the mother of all Indian languages. Harping on linguistics differences resulted in the creation of linguistic states. Today everyone says he is a Gujarathi, Tamilian, and Bengali. Where is the nation dear? How many say we are Indians? A visit to the U.S. would make you realize how linguistics has divided the Indian population into Maharashtrian, Andhra mandals and so on. What is the solution? Sri Aurobindo said that a simplified Sanskrit needs to be the national language of India. Since Sanskrit influences every Indian language it would be acceptable to Indians across the country. No anti-Hindi agitations.
Arising out of the need to conserve the language, script and culture as provided in art 29 (1) a school started by Gujaratis in Maharashtra is a minority school and so on. Someone rightly pointed out that Indians are first Gujaratis, Punjabis, and Tamilians and so on. This is one of the reasons.
Minorities have the right to establish and administer educational institutions? What these imply? Right to choose its managing and governing body. Right to choose its teachers and the right to impose service conditions regarding the teachers. Right relating to the admission of students. Right to choose its own medium of instruction and atleast a part of the syllabus. Right to use its properties and assets for the benefits of its own institution. Friends ask yourself a simple question. Why must Hindus be made to suffer government interference? Have not such provisions resulted in the country being divided on religious lines. Do the U.K. or U.S.A. treat their majority community the way we do?
Benefit Debate - while deciding whether an institution is a minority one must not we see as who is the beneficiary of such education? If art 30 (1) is read in conjunction with art 29 (1) it would be safe to assume that framers of the Constitution wanted minorities to conserve their culture, language by the establishment of educational institutions. This may be true in the case of Madrassas where Islamic religious education is imparted but does surely not apply to Christian schools. Here the majority of students are Hindus. In such a case how are these schools conserving Christian culture, language and script as provided for in art 29 (1)? Quote Advocate Mihir Desai ‘I believe that for achieving minority status the institution should be established for the benefit of the minority is the correct view’. The Supreme Court has given confusing verdicts on the issue. Through the Supreme Court judgment in the St Stephan’s College case it is now assumed that atleast 50 % of the students in a minority institution must be from the non-minority communities. Again this ruling is relevant for Christian institutions because no Christian or Hindu would go to a Madrassa where Islam is taught.
So any school started by a Minority would be deemed to be a minority institution even if it were to provide secular education.
Next come the words to Establish and Administer. While granting affiliation and recognition to minority educational institutions the State cannot impose such conditions as would erode the core of minority rights as provided in art 30 (1). It has come to mean that the State exercises more control over a part of its population as compared to others encouraging separatists tendencies in the process.
Minority rights to establish and administer educational institutions is not Absolute. Regulation must be with the intent of making it a better educational institution and not take away minority rights as provided for in art 30 (1).
Minority educational institutions do not have to reserve seats for scheduled castes and tribes, backward classes.
The State cannot exercise any control on the composition or working of the Managing Committee of a minority educational institution.
In case of mismanagement a Minority educational institution cannot be taken over by the State govt.
In a nutshell what are the provisions that only Hindu schools have to grapplewith? The major issues are - They are subject to greater control and supervision by the state govts. Their right to recognition and affiliation can be regulated on grounds of public interest or national interest, which is not the case in minority institutions. In case of mismanagement an administrator can be appointed or the management can itself be transferred to another body, which is not the case in minority institutions. The State can insist on having its own nominees on the managing body or in the management of the institution, which is not the case in minority institutions.
Above para follow - The State can mandatorily prescribe the procedure for appointment of Head Masters/Principals, which is not the case in minority institutions. The schools would have to follow the Reservation Policy for Scheduled Caste/ Tribes w.r.t. students and teaching/non-teaching staff which is not the case in minority institutions. The State/University can control selection Committee for teachers, which is not the case in minority institutions. On the basis of a cogent policy the State can refuse to give permission to start or recognize a new educational institution, which is not the case in minority institutions. Do the schools have the right to use their properties and assets for the benefit of its own institution?
Hindus do not have a fundamental right to establish and administer an educational institution, which may be secular in nature!
Friends would like to end this summary with a few thoughts.
Nations are formed through amalgamation of identities for a larger national cause not by continuously telling its people how one is different from the other.
One of the reasons that India is facing the problems that we are today is because after independence the Indians did not Indianize their governance but followed the Western model. A symbolic example is forcing Lawyers to wear black coats to Court. In Britain weather conditions permit such a dress but in hot, humid India it makes you sweat profusely.
The politicians of this country have failed to show the requisite political will to introduce a Uniform Civil Code in the country.
Surely the framers of the Constitution did not intend such constitutional provisions to lead to another Partition. Although, for now, our nation is one the mind is divided!
Way Forward Chapter 12 Friends my recommendations on the subject are -
Stage One is that Benefit of article 30 be extended to all communities.
Stage Two is that the benefits of articles 26 to 30 be extended to those educational institutions that impart religious training only. No state aid or foreign funding must be allowed to such institutions.
Opening of such institutions i.e. schools within 20 kms of the International border / LOC i.e. on the western side and 10 kms on the eastern side to be administered by the Army / BSF. Why are we making the armed forces get into education? It is a proactive military strategy.
All institutions that provide secular read as modern education are subject to the same set of rules and regulations as the Central or State Governments may impose.
I would like to end with a quote from a recent Supreme Court Judgment in Mudgal vs. Union of India, A. 1995 S.C. 1531 (para 35) “Those who preferred to remain in India after Partition fully knew that the Indian leaders did not believe in the two nation or three nation theory and that in the Indian Republic there was to be only one Nation – the Indian Nation – and no community could claim to remain a separate entity on the basis of religion”.
Quote from Holy Geeta (IV.7/8) “Whenever there is Decline of righteousness, And rise of unrighteousness, I incarnate myself To protect the virtuous And to destroy the wicked, From Age to Age”.
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