Religious freedom and right of minorities to establish and administer educational institutions of their choice

Introduction

India is one of the world’s most heterogeneous societies. Several religions, races, languages, cultures and customs have converged in the India making it a multicultural, multi-religious, multi-linguistic heterogeneous society. Co-existence of several heterogeneous diverse groups demanded mutual respect for each other and tolerance towards each others’ religions and religious practices. In this social setting idea of secularism has been preached in ancient India since times immemorial. The same idea has been followed in varied degrees by ancient rulers like Ashoka and Akbar who followed the policy of religious tolerance and curbed fanaticism.

Hence, the thrust of India society on secularism was inherent in Indian culture. However, the contours of secularism were not explained. Drafting of the Indian Constitution witnessed debate on secularism and religious freedom in Constituent Assembly and it paved the way for incorporation of various provisions in the constitution dealing with religious freedoms of individuals, religious denominations and varied features of secularism.

RELIGIOUS FREEDOMS UNDER THE INDIAN CONSTITUTION

Article 25 of Constitution of India guarantees the following religious freedoms:

Equal entitlement to freedom of conscience
Right to profess and practice religion
Right to propagate religion and religious beliefs

However, these rights are not absolute. Perusal of Article 25 reveals that these rights are subject to following limitations:

Public order
Morality
Health
Other provisions of Part III of the Indian Constitution
Laws regulating or restricting economic, financial, political or other secular activity which may be associated with religious practice
Laws providing for social welfare and reform
Laws providing for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus

Right of Minorities to Establish and Administer Educational Institutions (Article 30)

Right of Minorities to Establish and Administer Educational Institutions is explained in Article 30 of the Indian constitution. Article 30 provides all minorities either based on religion or language the right to establish and run educational institutions choosing their own qualifications for students and teachers. Along with that it also prohibits the state from discrimination in granting aid to minority educational institutions. The rights of Indian people in terms of culture and education are covered in Articles 29 and 30. In this article, we will explain the constitutional provisions, look into the constituent assembly debates and decode the Supreme court judgements on this fundamental right.

Constitutional Provisions

Article 30 guarantees the following rights to all minorities:
- The right to establish and run educational institutions of their choosing.
- The State’s compensation amount for the compulsory acquisition of any property owned by a minority educational institution does not limit or abrogate the right provided to them.
- The 44th Amendment Act of 1978 added this provision to protect minorities’ rights in the area of compulsory acquisition by incorporating clause (1A).
- The state shall not discriminate against any minority-run educational institution.
Thus, protection under Article 30 is limited to minorities (religious or linguistic) and does not extend to any other group of citizens (as under Article 29).
However, the term “minority” is not defined elsewhere in the Constitution.
Article 30 also covers the right of a minority to educate its children in their native tongue. Minority educational institutions are classified into three types:
- those seeking both recognition and help from the state;
- those seeking just recognition from the state and not aid;
- those seeking neither recognition nor aid from the state.

Article 30 states that:

(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 an 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.

Constituent Assembly Debates

During the drafting stage the article on minorities to establish and administer educational institutions was included in the article on the protection of interests of minorities. However, it was debated and made as a separate article.
A member of the Constituent Assembly proposed to give linguistic minorities the right to receive primary education in their own language and script.
Another member advocated for the same if there is a minimum number of students available as due to freedom of movement people would settle in different parts of the country.

National Commission for Minority Educational Institution

In 2004, the National Commission for Minority Educational Institutions was established.
The provisions for the formation and administration of minority educational institutions are outlined in the National Commission for Minorities Educational Institutions Act of 2004.
The Commission is tasked with investigating particular complaints alleging denial or infringement of minorities’ rights to create and govern educational institutions of their choosing.
The Commission can investigate any complaints pertaining to minorities’ rights to create and govern educational institutions of their choosing.
This Commission is a quasi-judicial body having the authority of a Civil Court. It will be chaired by a former High Court judge, and three members will be appointed by the Central Government. Both the chairman and all three members must be members of a minority community.
The Commission has three functions: adjudicatory, advisory, and recommendatory powers.
The Commission has the authority to advise the Central Government or any State Government on any matter relating to minorities’ education that is referred to it, as well as to make recommendations on any matter that directly or indirectly deprives the minority community of their educational rights as enshrined in Article 30.

Benefits of Minority Institutions

Minority educational institutions are not obligated to maintain a reservation in jobs or affirmations for SCs, STs, and OBCs, as other educational institutions are.
Minority educational institutions wield far more influence over lawmakers than other institutions.
For example, in the appointment of teachers and principals, a minority educational institution might form a selection advisory panel that excludes university officials.
Thus, although in traditional institutions, the headmaster is usually picked based on seniority, minority administrations can appoint a headmaster of their own choosing.
When it comes to student admission, minority educational institutions can have a reservation of up to 50% for students from their own community.

Important Court Judgements

St. Stephen’s College v. University of Delhi

It was challenged regarding the preference given to Christian students by St.Stephen’s College.
The Supreme Court said that the college is not bound to follow the university circulars as it will deprive the college of its minority character.
Therefore, an admission policy where 50% of the seats reserved for the minority community and 50% of seats based on merit were followed.

T.M.A Pai Foundation v. State of Karnataka

The Supreme court ruled that a minority institution may have its own procedure and method of admission as well as a selection of students.
The procedure for selection must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit.

Conclusion

Making provisions for minorities to maintain their educational rights is not intended to be inequitable to the favoured classes, but it does provide a sense of security to the minority class. Our constitution’s most essential topic is “Unity in Diversity.” Language differences, as well as religious differences, determine minority status. Minorities will be able to preserve and develop their culture as a result of these constitutional provisions.