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A full bench of the Supreme Court is going into the scope of
Article 30 of the Constitution concerning the rights of a minority
community in establishing and administering educational
institutions of its choice. Shri Joseph Pulikunnel, a member of a
minority community, Nazrani Catholic Church of India and Director
of Indian Institute of Christian Studies. Kerala says that
hundreds of colleges and schools established by the community are
run by the priests and nuns of the Church in the name of the
minority community. The management of these institutions are with
the priests and nuns and 99.9 per cent of the community has no say,
whatsoever in the administration of these educational institutions.
He demands the Supreme Court's intervention in this matter. We
reproduce below his write up as under:
A fuller bench of the Supreme Court of India is hearing a writ
petition regarding the scope of the Article-30 (1) of the
Constitution of India.
In most cases, under Article 30 (1), the aggrieved parties have
been either teachers or employees of minority institutions and the
counter petitioners, the managements, universities and Governments.
Because of the nexus between politicians and the managements of
institutions, the aggrieved individual, more often lost by default,
even before the judiciary. The money power of private managements
can easily muster the top legal brains to plead their case while
the poor victim fails to present his case effectively for want of
resources.
The Universities and Government seldom plead their case seriously.
However, in the name of minority right. bigoted authoritarianism is
got upheld through vexatious, prolonged and expensive legal
process.
The major question involved with regard to the Article-30 (1) is
the definition of the term "minority" and the purpose behind
Article-30 (1) The scope and relevance of the Article 30 (1) is to
be understood in the background of Article 29 of the constitution.
Article-29 states: "Any section of the citizens residing in the
territory of India or any part there of having a distinct language,
script or culture of its own shall have the right to conserve the
same". The purpose of the educational right under Article-30 (1) is
to conserve the culture of the minority community. Since the world
educational institutions" happens to occur in Article 29 (2), it
should be deemed that educational right is a cultural right and not
a religious right.
Religious rights are protected under Articles 25, 26, 27, 28 of the
constitution. Article 30 (1) defines the operative scope of 29
(2). Since religious rights have been protected by other clauses;
rights under 30(1) refer to cultural -rights and therefore does not
confer a religious fight on clerical hierarchy.
Article 30 (1) is a proviso to Article 29 (2): "No citizen shall be
denied admission into any educational institution maintained by the
State for receiving aid out of State funds on grounds only for
religion. race. caste. language or any of them". Minority
communities have the right to establish and administer educational
institutions of their choice for the purpose of the consolation
their culture. This right cannot be deemed as a blanket right. It
does not annual the right of the citizens under Article 29 (2).
The rights under article 30 (1), being enjoyed by all minorities
based on religion or language. is to be viewed fundamentally as a
cultural right and not as a religious right.
Article 29 and 30 are to conserve the cultural mosaic of the
country from the inroads of intolerant and dominant cultural
invasions or assaults.
To avail the special protection of Article 30 (1) for any
educational institution two conditions have to be fulfilled:
(1) The educational institutions which seek protection under
Article 30 (1) should have as its purpose. the conservation of the
culture of the community. (2) The institution is to be established
by the will of the community and (3) the institution should be
administered by the community. This follows that the establishment
and administration of the institution should be vested in the
elected representatives of the community.
Today most of the so-called minority educational institutions which
seek the protection of article 30 (1) are administered by persons
who are not the elected representatives of the minority community
but a coterie parading themselves as representing minority
community.
Institutions run by Catholic Church are administered by priests and
nuns, whose source of authority is the diocesan bishop appointed by
the Pope of Rome who is also the head of the State of Vatican. This
cleric group does not form even 01 per cent of the community. The
community as such has no say in the management of the so called
"minority institutions".
Institutions whose management do not draw their authority from the
willing consent of the members of the community in this country
should not he allowed to enjoy the privileges under minority
rights. Accountability and transparency have to be ensured in the
minority institutions.
If the Hon'ble Supreme Court were to call for the personnel of the
management of the institutions run by the Church, it can easily
ascertain that the management is solely with the priests or nuns.
The laymen which form 99.9 per cent of the community are kept out
of the management structure.
Articles 31 is a 'Magna Carta' for the minority communities for the
conservation of the culture of the religious and language
minorities. This purpose can only be achieved by. granting this
right only to those institutions which are established and
administered by the minority communities through their elected
representatives.
The first and foremost task before the Hon'ble Supreme Court is to
lay. down norms for declaring an educational institution as a
minority educational institution. Any institution that is not
established and administered by the elected representatives of the
minority community should be divested of the enjoyment of the
minority right,
Article-30 (1) being a right conferred on the community, any
institution that is established and administered without an
effective representative management of the community cannot be
deemed an educational institution run by a minority community.
Since the funds for 'running the educational institutions is from
the treasury of the state, it becomes necessary to spell out in
detail the norms for being recognised as the minority institutions
for the enjoyment of the special protection. The interest of the
community should be protected in the administration of such
educational institutions.
Since the right under article 30 (1) is a right conferred on the
community, it should be the duty of the government to establish an
independent commission in every state and the minority institutions
be asked to register with it. Such a step would enable the
community to enjoy this benefit in accordance with the spirit of
the constitution Article 30 (1) of the constitution should be
deemed as a protective right for the minority community and not a
business preposition.
According to the present system the management gets a free hand in
the selection and promotion of the staff and admission of the
students in he minority institutions which are wholly financed by
the State. The managements of minority institutions of the
Christian churches. especially the episcopal churches, are with the
clerics and there are no norms for the representation of the
community in the administration.
At present the right under Article-30 (1) is enjoyed by the
management of the educational institutions and not by the
community. It is highly necessary that the court should frame norms
for the registration and recognition of educational institutions
that are to he protected by Article-30 (1). Educational
institutions that are not run by the elected representatives of the
community should not get recognition as minority institutions.
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