Some Clarity on Minority Institutions

By Gerald DSouza SJ

There is a lot of misinformation campaign about the Minority Institutions, especially

schools in Jharkhand and some other Northern States. Some of the government officials
purposely not only create confusion but also instigate people to create hurdles against
recognized minority schools. For example, in Dhanbad in Jharkhand, all the seven De
Nobili schools and two Carmel schools have got Minority Certificate from the National
Minority Commission, New Delhi. There are other schools like Guru Govind Public
Schools (GGPs) who have applied for Minority status and their cases have been duly
considered by the competent authorities. However, a willful campaign by some of the
politically motivated officials without even verifying the facts go on issuing statements of
negativity about the minority schools. I do not perceive any philanthropic intention behind
such activities, but strongly feel they are motivated by political and anti-educational
sentiments. This has seriously affected educational environment.
In this context it becomes very relevant to clarify the doubts and know what it means to
run a minority school, its scope, rights and duties. This study is an effort to eliminate the
misunderstanding one may have regarding the Fundamental Rights of the Minorities. An
institution is not granted minority status just based upon the 50% enrollment of minority
students. It is purely granted based on the two essential conditions i.e. who established
the institution and whether it is maintained by a person or group of persons from among
the minorities. It has to be left to authorities to prescribe a reasonable percentage having
regard to the type of institution, population and educational needs of minorities. However,
rigid percentage cannot be predetermined.
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Meaning of minorities"

Linguistic and religious minorities are covered by the expression "minority" under Article
30 of the Constitution. Since reorganization of the States in India has been on linguistic
lines, therefore, for the purpose of determining the minority, the unit will be the State and
not the whole of India. Thus, religious and linguistic minorities, who have been put on a
par in Article 30, have to be considered Statewise. Article 30(1) gives religious and
linguistic minorities the right to establish and administer educational institutions of their
choice. The use of the words "of their choice" indicates that even professional
educational institutions would be covered by Article 30. This fact has to be understood
well.

The National Commission for Minority Educational Institutions Act (for short the Act) has
been enacted to safeguard the educational rights of the minorities enshrined in Article
30(1) of the Constitution. As regards the indicia to be prescribed for grant of minority
status certificate, a reference to Section 2(g) of the Act has become inevitable as it
defines a Minority Educational Institutions. Section 2 (g) is as under: -

Minority Educational Institution means a college or institution (other than a University)

established or maintained by a person or group of persons from amongst the minorities
The guidelines for determination of minority status, recognition, affiliation and related
matters in respect of Minority Educational Institutions under the Constitution of India
clearly state that a minority educational institution continues to be so whether the
Government declares it as such or not. When the Government declares an educational
institution as a minority institution, it merely recognizes a factual position that the
institution was established and is being administered by a minority community.

Although there are a number of judgments pronounced by the countrys highest courts of
law, the Supreme Court of India about the minority institutions, it has been held by a
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Division Bench of the Madras High Court in T.K.V.T.S.S. Medical Educational and
Charitable Trust vs. State of Tamil Nadu, AIR 2002 Madras 42 that once it is established
that the institution has been established by a linguistic minority, and is administered by
that minority, that would be sufficient for claiming the fundamental right guaranteed under
Article 30(1) of the Constitution.

In the case of Azeez Basha vs. Union of India, AIR 1968 SC 662, a Constitutional Bench
of the Supreme Court has held that the expression establish and administer used in
Article 30(1) was to be read conjunctively that is to say, two requirements have to be
fulfilled under Article 30(1), namely, that the institution was established by the community
and its administration was vested in the community. In S.P. Mittal vs. Union of India, AIR
1983 SC 1, the Supreme Court has held that in order to claim the benefit of article 30(1),
the community must show; (a) that it is a religious/linguistic minority, (b) that the
institution was established by it.

Rights and Responsibilities

The constitution of India confers a large number of benefits to minority communities

through a series of inviolable fundamental rights. The Supreme Court has also held them
as a protective arrangement so as to give guarantee of security to the identity of
minorities and thus maintain integrity of the country. As a minority institution, it can
exercise minority rights as guaranteed by the Constitutions of India in its Articles 29 and
30 on minority rights.

Article 30 (1) guarantees the Right of minorities to establish and administer educational
institutions. The right to establish and administer a private unaided minority school is a
right to carry or an occupation as guaranteed by Article 19(g) of the Constitution of India.
Although Article 19(6) of the Constitution of India permits placing of reasonable
restrictions, such reasonable restrictions can be placed only by law enacted by
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legislature and not by a Circular or a Government Resolution issued under Article 162 of
the Constitution.

Meaning of Right to Administer

Right of administration includes right to settle reasonable fee structure for the
educational institutions established by them. Every institution is free to devise its own
reasonable fee structure subject to the limitation that there can be no profiteering and no
capitation fee can be charged directly or indirectly, or in any form. So long as there is a
reasonable fee structure in existence and so long as there is transfer of funds for the
purpose of assistance to any other school or educational institution in view of expansion
of facilities and eucation under the management of the same society or trust there cannot
be any objection from the department of education. The other major verdict was the P. A.
Inmdar case of 2005, in which the apex court supplemented the charter of rights by
including the minorities right to frame reasonable fee structure and right to take action
against employees for dereliction of duty.
Any private unaided minority institution is consequently entitled to protection under
Article 30 (1) of the Constitution of India. Any attempt to interfere with the fee structure of
such an institution would fall foul of Article 30. The decision on the fees to be charged
must necessarily be left to the private educational Institutions that do not seek aid or are
not dependent upon any funds from the Government. Therefore, fees to be charged by
unaided institutions cannot be regulated but no institution should charge capitation fee.
Reasonable surplus to meet cost of expansion and augmentation of facilities does not
however amount to profiteering. Any restriction on the financial matters of the minority
schools would also amount to dismember the cultural network of the minority institutions.
Such disallowing of expenses would negate their right of minority institutions to retain
their character as minority institutions.
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Right to administer also means the maintenance of discipline against staff, salary of
teachers, right and to select the students for admission is all part of administration. On
the question of admission of students of the concerned minority community, a number of
decisions by the courts have ruled that, according to article 30(1), the minorities whether
based on religion or language have the right to establish and administer educational
institutions of their choice and the right to select students for admission is a part of
administration. In the Ahmedabad St. Xaveirs College Society case of 1974, the apex
court spelt out four principal matters. They are minorities right to choose its managing
or governing body; right to choose their teachers; right not to be compelled to take or
refuse students; and the right to use its properties for the benefit of its own institution.
Answering the question on whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the State Government or by
the university to which the institution is affiliated, an 11 Judge bench of the Supreme
Court while hearing and deciding the T.M.A.Pai Foundation v. State of Karnataka (2002)
8 SCC 481 have concluded that admission of students to unaided minority educational
institutions viz. schools and undergraduate colleges where the scope for merit-based
selection is practically nil, cannot be regulated by the State or university concerned,
except for providing the qualifications and minimum conditions of eligibility in the interest
of academic standards.

A minority institution does not cease to be so the moment grant-in-aid is received by the
institution. An aided minority educational institution, therefore, would be entitled to have
the right of admission of students belonging to the minority group and at the same time,
would be required to admit a reasonable extent of non-minority students, so that the
rights under Article 30(1) are not substantially impaired and further the citizens' rights
under Article 29(2) are not infringed. As regards non-minority students who are eligible to
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seek admission for the remaining seats, admission should normally be on the basis of
the common entrance test held by the State agency followed by counselling wherever it
exists.

Minority Certificate Status

Minority Status Certificate is mandatory for all the educational institutions established
and administered by minority communities to claim the rights enshrined in Articles 29 and
30 of the Constitution. Under this Act, National Commission for Educational Institutions at
New Delhi was constituted which issues minority certificates. The institutions which are
affiliated to the ICSE/ISC/CBSE can directly file an application to claim the Minority
Certificate. Those inistitutions which are affiliated to the state boards have to file an
application to the HRD secretary at the state level. If the department concerned does not
respond positively within a period of three months, the institutions can approach the
National Commission. Having a certificate will solve unnecessary harassment by
government officials who are not aware of the rights of minorities.

Here, it is good to note the order of the National Commission for Minority Educational
Institutions dated April 14, 2012, regarding the Minority Status of St. Antonys High
School for Girls, Alapuzha, Kerala. Justice M.A. Siddiqui, Chairman, stated that even
though the schools did not have minority status as it belonged to the educational
institutions established by the corporate management of Archdiocse of Changancherry
are minority schools within the meaning of Section 2(5) of the Kerala Education Act, the
school is declared as minority educational institution.

RTE Act 2009 and Minorities

The Supreme Court after marathon hearings and prolonged deliberations has
pronounced its judgments on April 12, 2012. It held that the provisions of the Right of
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Children to Free and Compulsory Education under RTE Act 2009 can be enforced
against the schools u/s 2(n) of the said Act except Unaided Minority Schools not
receiving any kind of Aid or grants to meet their expenses from the appropriate
Government or local authorities. Here it is worth noting that according to the Supreme
Court Judgement of April 12, 2012, the RTE Act does not apply to unaided minority
schools.

It is to be noted here that the Parliament has also passed the Right of Children to Free
and Compulsory Education (Amendment) Act, 2012 thereby amending the RTE Act,
2009. The amended Act has been notified in the Gazette of India on June 19, 2012.

Among other amendments, in Section 1, after Sub-section (3), the following sub-sections
have been inserted: (4) Subject to the provisions of Articles 29 and 30 of the
Constitution, the provisions of this Act shall apply to the conferment of rights on children
to free and compulsory education. (5) Nothing contained in this Act shall apply to
Madrasas, Vedic Pathsalas and educational institutions primarily imparting religious
instruction.

In Section 21, in

Sub-section (2)

the following provision has been inserted:

Provided that the School Management Committee constituted under Sub-section (1) in
respect of, -

(a) A school established and administered by Minority whether based on religion or

language.

(b) All other aided schools, as defined in Sub-section (ii) of Clause (n) of Section
2,

shall perform advisory function only.

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The Section 22 has also been amended and the School Management Committee of
unaided minority schools has been totally exempted from preparing the School
Development Plan. In view of the these amendments, the School Management
Committee of aided minority schools will perform advisory function only and such
Committees are not required to prepare a School Development Plan. The administrative
powers of the minority schools are solely vested governing body of the institution
according to this proviso and this is not to be tampered with.

Government Control

The state Government can not have any absolute right in administration of the institution.
A government can only regulate to maintain quality education, welfare of students and
staff. It can also regulate norms for NOC, affiliation, recognition, syllabus, examination,
qualification of Principal/teachers and welfare of students and staff. The unaided minority
schools have been vested with maximum autonomy as compared to the autonomy
granted for aided educational institutions. It is high time that all the heads of minority
schools find time to read and understand the RTE Act 2009, its amendmend on June 19,
2012 so as to keep onself updated and educated in the minority rights so that our
purpose of undertaking charitable and social activities by imparting quality education is
served.