by Nilima Chandiramani
‘Protection of minorities is the hallmark of a civilisation,' said the Father of our Nation, Mahatma Gandhi. The framers of the Indian Constitution showed utmost sensitivity to the needs and aspirations of minorities by incorpo-rating special safeguards in the Chapter on Fundamental Rights under the heading ‘Educational and Cultural Rights'.
Chief Justice S.R. Das, presiding over a Bench of seven judges in the Kerala Education Bill case, had reiterated in his peroration at the end of the judgement: ‘There can be no manner of doubt that our Constitution has guaranteed certain cherished rights to the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. .... So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Constitution to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own.'
And Chief Justice Sikri in the Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 had even gone to the extent of saying that Parliament cannot in exercise of its amending power abrogate the rights of the minorities.
Religious and linguistic minorities have the following fundamental rights: 1) to establish educational institutions (EIs) of their choice [Art 30(1)]; 2) to administer these educational institutions [Art 30(1)]; and 3) not to be discriminated against by the state in being granted aid merely because they are minority institutions [Art 30(2)].
To claim these rights, the community must show that it is a religious/linguistic minority; and that the institution is established by it and its administration vested in the community. [S P Mittal v. Union of India AIR 1983 SC 1; Azeez Basha v. Union of India 1968 SC 662]
Even a single member of a minority community can establish an EI. [State of Kerala v. Mother Provincial AIR 1970 SC 2079.]
Right to administer an EI includes the right to constitute the governing body, decide the composition of the managing body, appoint teaching and non-teaching staff, initiate disciplinary action against the staff, determine the salary of the staff and admit students.
What constitutes a ‘minority'? The term is not defined in the Constitution. The Motilal Nehru Report 1928 exhibited a strong desire to protect the minorities but failed to define the term. The Sapru Report 1945, which proposed the Minority Commission, also did not define the term. An initial court-room attempt was made in the Kerala Education Bill case. The Supreme Court held that a minority is ‘a community which is numerically less than 50 per cent of the total population'. But the Court did not specify whether this 50 per cent is of the entire population of India or a State or part of a State. It is only in the T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355, that the Court clarified that a minority will be determined on the basis of the numerical strength of the community in the State and not the country as a whole. Under the National Commission for Minorities Act 1992 and National Commission for Minority Educational Institutions Act 2004, minority “means a community notified as such by the Central Government”.
Before 1990, on almost every occasion on which the MEIs approached the Supreme Court complaining of State/Central legislative/executive action infringing their fundamental right to establish and administer their educational institutions, the Court leaned in their favour and protected their guaranteed rights. To give a few examples, in the State of Bombay v. Bombay Education Society AIR 1954 SC 561, the State Government passed an Order that Anglo-Indians could maintain their schools and teach in English but only to Anglo-Indian students. If they admitted other Indians they would forfeit their aid unless they switched to Hindi as the medium of instruction. The Order was struck down as unconstitutional and void on the ground that an MEI has the right to admit students of its choice, even if it receives government aid. Again in the ReKerala Education Bill AIR 1958 SC 979, a seven-judge Bench of the Supreme Court thwarted the attempt of the Government of Kerala to take over the management of Christian schools by the government. So also where a statutory condition for affiliation of any college to the University of Gujarat was that the teachers must be appointed only by the University, the condition was held to violate the fundamental right of a minority college to appoint teachers of its choice u/A 30(1). [ St. Xavier's College v. State of Gujarat AIR 1974 SC 1389]
Then came the TMA Pai Foundation (supra) in 2002 which changed not only the colour and complexion but also the shape and contours of the right of MEIs to administer their institutions. The judgement—extremely complex—has had far-reaching implications. It entailed two more judgements, one a five-judge Bench decision and the other a seven-judge Bench decision, to merely clarify the doubts raised by the TMA Pai Foundation and to cull out its ratio. But unfortunately the doubts still persist and our courts, before which the matters are pending, are passing interim orders only to be assailed before the higher judiciary.
The background note of the Pai Foundation is interesting and hence worth a mention. In 1993 a Writ Petition was filed by the Islamic Academy of Education. This petition and other connected petitions were placed before a Bench of five judges. As the Bench was prima facie of the opinion that Article 30 of the Constitution did not clothe an MEI with the power to adopt its own method of selection of students (and the correctness of the decision in the St. Stephen's College case was doubted), it was directed that the questions be placed before a Bench of seven judges. In the meantime the 42nd Amendment Act placed education on the Concurrent List (earlier it was in the State List) and the question of who would be regarded as minority was also to be considered. Therefore the Court directed that the matter be placed before a Bench of eleven judges. Hence the eleven-judge Bench in the T.M.A. Pai Foundation.
It warrants noting that the case was pending in the Apex Court for ten years. It was transferred from a Bench of five judges to seven judges and finally to eleven judges. Eleven questions were raised in this case. Several questions were left unanswered by the Bench. There were five different opinions of the eleven judges. Moreover the Union of India, State governments and EIs understood the majority judgements in different perspectives. Different regulations were enacted by different State governments. This led to innumerable litigations in several Courts. Interim Orders passed therein were finally assailed before the Supreme Court.
So a Constitutional Bench of five judges was constituted in the Islamic Academy of Education and Ors v. State of Karnataka and Ors 2003 AIR SCW 4240 to clarify the doubts raised by the decision given in the T.M.A. Pai Foundation. There were two opinions rendered in this judgement.
Then came the P. A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, a unanimous decision of a seven-judge Bench to sort out the alleged confusion created by the Islamic Academy case while clarifying the eleven-judge verdict in the T.M.A. Pai Foundation. The task of the seven-judge Bench in the P.A. Inamdar was to cull out the ratio of the T.M.A. PaiFoundation (not to disagree) and to examine if the clarification given in the Islamic Academy was in conflict with the TMA Pai Foundation.
In the T.M.A. Pai Foundation judgement two things stand out loud and clear. One, the purpose of conferring special rights on the minorities is to create equality (and not inequality) between minorities and non-minorities; and not to give any advantage to a minority which a majority does not have. Two, the Court does not want to water down the guarantees of minorities but at the same time it is reluctant to give up the non-discrimination doctrine of Article 29(2) which states that no citizen shall be denied admission into any EI maintained by the State or receiving aid out of State fund on grounds only of religion, race, language, whenever public funds are utilised to support MEIs. In other words, rights conferred by Article 30(1) are not absolute. They are subject to limitations imposed by Article 29(2). This means that Article 29(2) applies to Article 30(1). Article 30(1) has been made subservient to Article 29(2). The Court has equated Article 30(1) to Article 19(1)(g)—fundamental right to occupation—and therefore subject to reasonable restrictions imposed by law in the public interest. The judgement is important from the point of interplay between these two Articles. The minorities have the right to establish EIs of their choice but while administering them, aided minority educational institutions [AMEIs] have to admit a reasonable extent of non-minority students.
What follows are the salient points culled out from the above three judgements. These also happen to be the oft-debated and litigated issues.
1. Whether the right of minorities to establish and administer EIs is an absolute one.
It is clear that the right to administer MEIs is not absolute, though the right to establish an EI by a minority is absolute. The right to administer must not conflict with other parts of the Constitution, for example, Article 29(2). Nor can it override national interest. But at the same time government/university/authority regulations cannot destroy the minority character of an EI, nor render the minority right an illusion.
2. Whether minority and non-MEIs stand on same footing and have the same rights.
MEIs have a guarantee/assurance to establish and administer EIs of their choice u/Article 30(1), which non-MEIs do not have; for example, if the government decides to nationalise education, private EIs will not be permitted. Consequently non-MEIs will be bound by this but not MEIs. Again, the government may take over the management of a non-MEI but cannot do so in the case of an MEI. In the Re Kerala Education Bill case (supra) the Government of Kerala could not take over the Christian colleges in Kerala.
3. What is the unit for determining minority status?
The State and not whole of India is considered as a unit to determine the minority status of a community. Further, inclusion of education in the Concurrent List by the 42nd Amendment Act does not change this position.
4. Whether professional education is a matter under minority rights u/Article 30(1).
The phrase ‘of their choice' in Article 30(1) includes professional and technical education.
5. Is grant-in-aid to MEIs a matter of right?
Article 30 (2) does not give a right to MEIs to demand aid. It only means that an MEI shall not be discriminated against when aid to other EIs is granted by the State. If aid is denied to an MEI merely on the ground that it is managed by a minority, it will violate Article 30(2), otherwise not.
6. Whether receipt of aid can impinge on the right of administration of an MEI?
If an abject surrender of right of management is a condition of aid, it will hit Article 30. But if conditions of aid do not involve a surrender of the substantial right of management, it would not be inconsistent with the constitutional guarantee, even if the conditions of granting aid indirectly impinge upon some facets of administration. While granting aid, conditions relating to proper utilisation of grant, excellence of education, efficiency of administration, maintenance of fair standards of teaching, requisite qualification of teachers, syllabi, curriculum, courses to be conducted by the college, library requirements, selection and admission procedure of students, can be imposed on MEIs.
On receipt of aid, rights of MEIs do get curtailed to some extent. For example, Article 29 (2) will apply and admission to non-minority students cannot be denied merely on grounds of religion or language. So also application of reservation policy to such institutions can be made a condition of aid. However, curtailment of the right does not mean annihilation of the right u/Article 30. In the words of Justice Ruma Pal, ‘It cannot be that by giving aid one destroys those to whom aid is given.'
7. Whether Unaided Minority Educational Institutions (UMEIs) can be regulated by the State.
UMEIs are assured maximum autonomy in the method of recruitment and disciplinary control of teachers and staff, charging of fees, admissions of students, non-applicability of reservation policy of the State, etc. But even UMEIs will have to comply with the conditions of recognition/affiliation. The only caveat being that such conditions do not whittle down the right u/Article 30. For example, a university cannot impose a statutory condition of affiliation on an MEI that its teachers have to be appointed only by the university. The right to select a teacher from amongst the qualified candidates is an important right of administration and an MEI cannot be robbed of this right, whether aided or unaided.
8. Whether admission of students to MEIs can be regulated by the State Government or university.
As UMEIs are promised least interference in the rights of management, the competent authority can at the most provide qualifications and minimum conditions of eligibility of students; provided admission is on a transparent basis and merit is adequately taken care of. An AMEI can be required to admit a reasonable extent of non-minority students so that the citizen's right to education u/Article 29 (2) is not infringed. What would be the reasonable extent would depend on the type of institution, nature of education, needs of the minority, strength of the local population. The State may prescribe the percentage. However, rigid percentage cannot be stipulated [St. Stephen's College (50 per cent-50 per cent) and Unni Krishnan cases were overruled to that extent]
9. Whether the minority's right to administer EIs will include procedures and method of admission and selection of students.
An MEI may have its own procedure and method of admission but such procedure must not be tantamount to maladministration and the procedure must be fair and transparent and based on merit. In the St Stephen's College v. University of Delhi, it was held that the college is not bound to admit students solely on the basis of merit determined by the percentage of marks secured at the qualifying exams as per the University circular. Admission based on marks at the qualifying exams plus marks obtained in interview (not exceeding fifteen marks) was held valid, as the procedure was transparent and not arbitrary and based on merit.
Selection of students in professional and higher education colleges should be on the basis of merit. While giving aid to professional institutions, it is permissible for the authority giving aid to prescribe rules for grant of admission to students. In minority-aided professional institutions [MAPIs], passing of CET held by the State agency can be stipulated as a necessary procedure. So also compliance with the reservation policy may be made a condition of grant-in-aid. Even an UMEI cannot ignore the merit criteria for admission. A minority professional educational institution (MPEI) can admit, in its management quota, a student of its own community in preference to a student of another community, even though that other student may be more meritorious.
10. Whether the fees charged by MEIs can be regulated by government/university/authority.
Fees charged by UMEIs cannot be regulated provided the UMEI does not indulge in profiteering or charge capitation fees. In the case of MPEIs, fixing of the rigid fee structure by the government is not permissible. Each MPEI has the freedom to fix its own fee structure keeping in mind its infrastructure, facilities available; and for generating surplus for growth. A Committee is to be set up by the State and each MPEI must place before it, its proposed fee structure before the commencement of the academic year. Fees for the entire course cannot to be charged from the student at the time of admission. A bond may be taken instead. The fee scheme in the Unni Krishnan case (payment seats and free seats) was held unconstitutional.
11. Whether statutory provisions regulating appointment of the staff interfere with the right of administration of an MEI.
Appointment of staff is an extremely vital facet of administration by the minority. The state/university, to maintain academic standards, may regulate the method of selection by prescribing requisite qualifications for teachers/principals. MEIs have the right to appoint teachers/staff of their choice from among the qualified candidates; even if the EMIs receive State aid. In the Brahmo Samaj Education Society and Ors v. State of West Bengal and Ors 2004 11 CLR 821, by virtue of Section 7 of the West Bengal College Service Commission Act, the Commission was vested with the duty to select teachers in colleges affiliated to the West Bengal University. The Apex Court held that the petitioners have the right to appoint teachers of their choice from amongst the NET/SLET-qualified candidates. Merely because the petitioners are receiving aid, their autonomy of administration cannot be totally restricted. Such institutions cannot be treated as government-owned. The Hajinural Hasan Master Charitable Trust v. State of Gujarat arose from a Government Resolution which mandated an AMEI to absorb teaching and non-teaching staff declared surplus in another MEI, failing which their grant-in-aid would be cut. It was held the the Government Resolution violated the fundamental right u/Article 30(1) and was hence void. In the Sindhu Education Society v. State of Maharashtra and Ors 2006(1) Bom CR 898, the question raised was whether the reservation policy in appointment of teaching and non-teaching staff, as directed by the State Government, is applicable to an AMEI. It was held that an AMEI is not bound by the reservation policy of the State Government.
12. Whether any law/ regulation/ rule interfering with the disciplinary control that an MEI has over its staff is valid.
Any regulation interfering with the discip-linary control that an MEI has over its staff violates Article 30(1). Prior permission or ex post facto approval of the government/ authority is not necessary for removal or dismissal of any member of the staff of an MEI. However, holding of fair domestic inquiry is necessary. Setting up of educational tribunals was directed by the Court.
Finally the question whether Right to Education Act (RTE) is applicable to MEIs. This question has been answered very recently by a Constitutional Bench of the Supreme Court in the Pramati Educational and Cultural Trust and Ors v. Union of India and Ors AIR 2014 SC 2114. The constitutional validity of the RTE was earlier considered by a three-judge Bench of the Supreme Court in the Society for Unaided Private Schools of Rajasthan and Anrv. Union of India (2012) 6 SCC 102. Two of the three judges held that the Act is constitutionally valid and it applies to aided minority schools but not to unaided minority schools. The above decision was challenged before a Constitutional Bench of five judges in the Pramati Educational and Cultural Trust and Ors (supra). The Bench unanimously decided that the RTE is not applicable to MEIs, whether aided or unaided.
While concluding, here is some food for thought. It is truly perplexing that on the one hand the Indian judiciary is zealously protecting the citizen's right to education even at the cost of trampling upon some of the FRs of MEIs, bestowed upon them by the Founding Fathers of the Indian Constitution. And on the other hand the Indian Government is bent upon eroding the citizen's right to education by permitting foreign educational institutions (FEIs) to foray the Indian education field.
The government has made an offer to liberalise higher education in India at the recently concluded tenth Ministerial Conference held at Nairobi in December 2015. And this is despite the fact that we are not obliged under the WTO to commit on all services. Will our government or even our strong independent judiciary be then able to control and regulate FEIs by making their commercial/ profiteering motives subservient to the citizen's right to education?
Even today, in India, education is not a commodity to be traded. It is a part of our culture, ethos and life. Committing higher education to market-access under the lop-sided and unhealthy GATS Agreement will entail unbridled commercialisation (of education)—a typical characteristic mandate of the WTO. Not only will education become unaffordable to the poor in India but it will also lose its quality. FEIs will treat our students as cows to be milked. The fatter the cow, the more the milk. Substandard FEIs will open their shops on Indian soil and provide even more substandard courses to our students—naïve and craving for degrees from FEIs—without comprehending that neither will they be denied admissions by FEIs (provided they can afford paying exorbitant fees) nor will they be declared unsuccessful in exams by such institutions.
The uncontrolled globalisation of education will have a cascading effect on the other Indian educational institutions and finally on the society as a whole. The field of education in India will be denuded of its nutrients in the long run, leaving behind barrenness and complete collapse of values. Are we prepared for it?
Prof Nilima Chandiramani is the Principal, Nari Gusahani Law College, University of Mumbai; she is the former Dean, Faculty of Law, University of Mumbai.