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The Ahmedabad St. Xaviers College ... vs State Of Gujarat & Anr on 26 April, 1974
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(4)The provisions of sub-section 1 (a) and 1 (b) of s. 33A abridge the right of the religious minority to administer educational institutions and therefore their choice. The requirement that the College should have a governing body including persons other than those who constitute the 'governing body of the society of Jesus has the effect of divesting that body of its exclusive right to manage the educational institution. Under the guise of preventing maladministration, the right of the governing body of the College constituted by the religious minority to administer the institution cannot be taken away. The effect of the provision is that the religious minority virtually loses its right to administer the institution it has founded. [269G-H; 270B] Kerala v, Mother Provincial [1971] 1 S.C.R. 734 at 740, W. Proost v. Bihar [1969] 2. S.C.R. 73 at 77-78 and Rev., Bishop S. K. Patro v. Bihar [1970] 1 S.C.R172. (5)It is upon the principal and teachers of a college that the tone and temperof an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose a principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important fact of the right to administer an educational institution. There is no reason why a representative of the University nominated by the Vice Chancellor should be on the Selection Committee for recruiting the principal or for the insistence of the head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. [270G-R] (6)On the plain wording of s. 40 it is clear that the governing body of the religious minority will be deprived of the most vital function which appertains to its right to administer the college, namely, the teaching, training and instructions in the course of studies in respect of which the University is competent to hold examinations. The fundamental right of a minority to administer educational institutions of its choice comprises with it the elementary right to conduct teaching, the training and instruction in courses of studies in the institutions so established by teachers appointed by the minority. If this essential component of the right of administration is taken away from the minority and vested in the university there can be no doubt that its right to administer the educational institution guaranteed under art. 30(1) is taken away. (271G-H] (7)If s. 40 is ultra vires art. 30(1) s. 41 which, in the present scheme of legislation is dependent upon s. 40 cannot survive. [272D] (8)The provisions contained in sub-clause (1)(b) and (2)(b) of s. 51A are violative of the right under art. 30. The relationship between the management and a teacher is that of an employer and employee, and it passes one's understanding that the management cannot terminate the services of a teacher 182 on the basis' of. the contract of employment. To require that for terminating the services of a teacher after an enquiry has been conducted the management should have the approval of an outside agency like the Vice-Chancellor or of his nominee would be an abridgement of its right to administer the educational institution. There is no obligation under sub-sections 1(b) and 2(b) that the Vice- Chancellor or his nominee should give any reasons for disapproval. A blanket power without any guidelines to disapprove the action of the management would certainly encroach upon the right of the management to dismiss or terminate the services of a teacher after an enquiry. [273F; 273C-E] (9)Section 52A is bad in its application to minorities. The Provision contained in this section subserves no propose and there is no doubt that it will needlessly interfere with the day to day management of the institution. Every petty dispute raised by a member of the teaching or non-teaching staff will be referred 'to arbitration if it seems to touch the service conditions. Arbitrations, not imparting education. will become the business of the educational institutions. [274-B] BEG, J. (1) Although articles, 29 and 30 may supplement each other' so far as certain rights of minorities are concerned yet, article 29 of the Constitution does not, in any way, impose a limit on the kind or character of education which a minority may chose to impart through its institution to the children of its own members or to others who may choose to send their children to its schools. [274E-F] (2)Even if article 30(1) of the Constitution is held to confer absolute and unfettered rights of management upon minority institutions, subject only to :absolutely minimal and negative controls in the interests of health and law and order, it could not be meant to exclude a greater degree of regulation and control when a minority institution enters the wider sphere of general secular and non-denominational education, largely employs teachers who are not members of the particular minority concerned and when it derives large parts of its income from fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interest of those who are affected by the management of the minority institution and the education it imparts but Who are not members of the minority in management. Where a minority institution has, of its own free will, opted for affiliation under the terms of a statute. it must be deemed to have chosen to give up, as a price for the benefits resulting from affiliation, the exercise of certain rights which may in another context, appear to be unwarranted impairments of its fundamental rights. If the object of an enactment is to compel a minority institution, even indirectly, to give up the exercise of its fundamental rights the provisions which have this effect will be void or inoperative against a minority institution. The price of affiliation cannot be a total abandonment of the right to establish and administer a minority institution conferred by article 30(1) of the Constitution. [291H; 275D-E] (3)Affiliation being only a statutory and not a fundamental right of the minority under article 30(1) of the Constitution the right under this article cannot be said to be violated unless and until it is shown that application of the College for autonomy has been or is bound to be rejected. Compelling the college to become a constituent part of the University amounts to taking away of its separate. identity by the force of law. But if the College has really attained such standards of organisation and excellence as it claims to have done, it can have an autonomous status under s. 38B of the Act with all its advantages and freedoms practically for the asking. [277H] (4) In as much as s. 5 of the Act has a compelling effect by denying to the petitioning college the option to keep out of the statute altogether, the section would be inoperative against it. Section 5(i) has the effect of compelling a college to abandon its fundamental rights guaranteed by article 30(1) of the (Constitution as a price for affiliation by the Gujarat University because it is not permitted to affiliate with any other, University without the sanction of the Government. [277A: 276G] (5)The only provisions-which could have a compulsive effect petitioning college could be s. 5 and then sections 40 and 41 which would magically convert affiliated colleges into constituent colleges of the University, 183 without the interposition of an option, and, therefore, could be said to deprive, the petitioning college of the opportunity to become an autonomous college. Provisions of s. 40 and the remaining provisions of sec. 41 of the Act are all parts of the same compulsive scheme or mechanism which is struck by article 30(1) Section 41(1) operates even more directly upon the petitioning college. which had been "admitted to the privileges. of the University" under S.5 (

3) by, affiliation. This provision would have the compelling effect of making it automatically a constituent unit of the, University. and must, therefore., be held to be inoperative against the petitioning college as it cannot affect the fundamental rights guaranteed by article 30(1) of the Constitution. [278D-E; 277B] (6)Section 41 of the Act, as it stands, could have the effect of negativating the right conferred by s.38B of the Act by transforming, mechanically and by operation of the statute affiliated colleges into constituent colleges so that no question of autonomy could practically arise after that. [278E] (7)On the claims put forward by the petitioning college it appears very likely that the college will get the benefit of s.38B of the Act and therefore will escape from the consequences of affiliation found, in the impugned sections. It is true that section 38B of the Act imposes certain conditions which, the college will have, no difficulty in satisfying. In any case until its application for autonomous status is rejected, it could not reasonably complain that the other provisions of the Act, apart from section 5, 40 and 41, will be used against it. [288D-E] (8)The essence of the right guaranteed by article 30(1) of the constitution is a free exercise of their choice by minority institutions of the pattern of education as well as of the administration of their educational institutions' Both these taken together. determine the kind or character of an educational institution 'which a minority has the right to choose. Where these patterns are accepted voluntarily by a minority institution itself, the requirement to observe these patterns would not a real violation of rights protected by article 30(1). In a case in which the pattern is accepted voluntarily by a minority institution with, a view to taking advantage of the benefits conferred by a statute. it cannot insist upon an absolutely free exercise of the right of administration. No doubt, the rights protected by article 30(1) are laid down in "absolute" terms without the kind of express restrictions found in articles 19, 25 and 26 of the Constitution. But, if a minority institution has the option open to it of avoiding the statutory restrictions altogether, if it abandons with it. benefits of a statutory right, there is no reason why the absoluteness of the right under article 30(1) of the Constitution is taken away or abridged. [280B-F] (9)It is only when the terms of the statute necessarily compel a minority institution to abandon the core of. its rights under article 30(1) that it could amount to taking away or abridgement of a fundamental right within the meaning of article 13(2) of the Constitution. [280-H] (10)The mere presence of the representatives of the Vice- Chancellor the teachers members of the non-teaching staff and the students of the College required by s. 33A, would not impinge upon the right to administer. Such a spelling, is more likely to help to make that administration more effective and acceptable to everyone affected by it. A minority institution can still have its majority on the governing body. [281D-E] (11)The provisions of s. 51A do not constitute an unreasonable encroachment on the essence of rights of a minority institution protected by art. 30(1) of the Constitution which consists of freedom of choice. Section 52A does not constitute an infringement of the special minority rights under article 30(1) of the Constitution. [281-H] Re. Kerala Education Bill, 1957, [1959] S.C.R. 995; Rev. Sidhrjbhai Sabhai & Ors. v. State of Bombay & Anr.. [1963] 3 S.C.R. 837: Rev. Father W. Proost & Ors. v. The state of Bihar &. Ors, [1969] 2.S.C.R. 73; Rt. Rev. Bishop S. K. Patro & Ors. V. State of Bihar & Ors. [1970] 1 S.C.R. 172 and State of 184 Kerala etc. v. Very Rev. Mother Provincial etc., [1971] 1 S.C.R. 734 referred to DWIVEDI J. (1) The content of the right under art. 29(1) differs from the content of the right under Art. 30(1). Article 29(1) secures the right of a..section of citizens having distinct script, language, or culture to conserve the same. Article 30(1) on the other hand guarantees the right of a religious or linguistic minority to establish and administer educational institutions. Article 29(1) gives security to an interest : article 30(1) gives security to an activity. [293 D-E] (2)Article 30(1) does not. in express or implied terms, limit the right of the. minorities to establish an educational institution of a particular type. The fight to establish an educational institution impliedly grants two kinds of choices. The minorities have a right to establish or not to establish any particular type of educational institution. This is the negative choice. The minorities, may establish any type of educational institution. This is the positive choice. Choice is inherent in every freedom. Freedom without choice is no freedom. So the words "of their choice" merely make patent what is latent in art. 30(1). Those words are not intended to enlarge the area of choice already implied in the right conferred by art. 30(1). [293 H, 294 A-B] (3) Rightaffiliation : There is not express grant of the right of affiliation in art. 30). It is also not necessarily implied in art. 30(1). if the constitution framers intended to elevate the right of affiliation to the status of a fundamental right they could have easily expressed their intention in clear words in art. 30. As our State is secular in character, affiliation of an institution imparting religious instruction or teaching only theology of a particular religious minority may not comport with the secular character of the State. As Art. 30(1) does not grant right of affiliation to such an institution it cannot confer that right on an institution imparting secular general education. The content of the right under art. 30(i) must be the same-for both kinds of institutions. [294 E-H] In re. The Kerala Education Bill [1959] S.C.R.995 at pp. 1076-1077.

Affiliation to a University really consists of two parts. One part relates to syllabi, curricula, courses of instruction, the qualifications of teachers, library, laboratories, conditions regarding health and hygiene of students. This part relates to establishment of educational institutions. The second part consists of terms and conditions regarding management of institutions. It relates to administration of educational institutions. With regard to affiliation a minority institution must follow the statutory measures regulating educational standards and efficiency, the prescribed courses of study, courses of instruction and the principles regarding the qualification of teachers, educational qualifications for entry of students into educational institutions etcetera. When a minority institution applies to a University to be affiliated, it expresses its choice to participate in the system of general education and courses of instruction prescribed by that University, Affiliation is regulating courses of instruction in institutions for the purpose of coordinating and harmonizing the standards of education. With regard to affiliation to a University, the minority and non-minority institutions must agree in the pattern and standards of education. Regulatory measures of affiliation enable the minority institutions to share the same 194 courses of instruction and the same, degrees with the non- minority institution.

If the right of recognition is not a fundamental right, the logical result of this postulate would be that the State need not recognise except on general terms open to all institutions. But if the recognition by a State is limited in so far as minority institutions are concerned, in that under (1) [1959] S.C.R. 995. at p.1059, 1060, 1067 & 1068. (2) [1963] 3 S.C.R. 837 at 856.

(3) [1971] Supp. S.C.R. 688 at 709.


the guise of exercising this power, the State cannot prescribe conditions which will make an inroad and take away the right guaranteed under Art. 30(1), then there is no meaning in saying that the right to recognise vis-a-vis minority institutions is not a fundamental right. This is one conclusion that can possibly be derived from the above observations of Das, C.J. The second conclusion which is possible is that these observations will have to be confined to the provisions of law regarding the validity of which the opinion of the Court was sought. In that case, the Bill had provided for giving recognition to schools for preparing students for the examinations conducted by the Board, and in so providing it had imposed conditions which the Court construed as tantamount to the minority institutions being required to surrender or denying them the right under Art. 30(1). The Court was not concerned with a law which did not deal with the question of affiliation or recognition at all or where the teaching was confined only to State managed and maintained schools. The observations of Das, C.J. cannot therefore, strictly speaking, apply to this fact situation. When it is so read, they cannot be held to have laid down that the State must provide for giving recognition at least to the minority institutions or accord recognition subject to such conditions as would in truth and in effect not amount to an infringement of their right under Art. 30(1). In other words, where the law does not provide for giving.recognition or affiliation to any educational institution irrespective of whether it is a majority or a minority institution, can the minority institution claim recognition on the ground that without-recognition or affiliation the educational institution established by them cannot fulfil the real objects of their choice and the mino- rities cannot effectively exercise their rights under Art. 30(1) ? If the logical answer flowing from the observations is that it cannot, then the question would arise as to what is the purpose which clause (1) of Art. 30 serves ? The, only purpose that the fundamental right under Art. 30 (1) would serve would in that case be that minorities may establish their institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas. Such institutions have the right to seek recognition to their de- grees and diplomas and ask for aid where aid is given to other educational institutions. giving a like education on the basis of the excellence achieved by them. The State is bound to give recognition to their qualifications and to the institutions and they cannot be discriminated except on the ground of want of excellence in their educational standards so far as recognition of degrees or educational qualifications is concerned and want of efficient management so far as aid is concerned.