educational rights of the minorities under article 30 of the indian constitution

386 Pages·2012·6.99 MB·English

EDUCATIONAL RIGHTS OF THE MINORITIES
UNDER ARTICLE 3O OF THE INOIAN CONSTITUTION
THESIS SUBMITTED BY
ANNIE JOHN
FOR THE AWARD OF THE DEGREE OF
DOCTOR OF PHILOSOPHY
IN THE FACULTY OF LAW
UNDER THE SUPERVISION OF
Dr. V. D. SEBASTIAN
DEPARTMENT OF LAW
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
COCHIN - 682 O22
JUNE 1995
CERTIF I§{\T§
Certified that the thesis "EDUCATIONAL RIGHTS OF
THE MINORITIES UNDER ARTICLE 30 OF THE INDIAN CONSTITUTION"
is the record of bona fide research carried out by
Mrs.ANNIE JOHN under my supervision. The thesis is worth
submitting for the Degree of Doctor of Philosophy under the
Faculty of Law.
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Dr.V.D.SEBASTIAN
Cochin 682017 ._ Valiaveetil
(Supervising Teacher)
1 June 1995 ;3 7K/23a14l-oAo"Pra,ll iCppaoracmhbui nRo 6ad8 E2xt0en1sio7n
P§§EARA'l'I Q1‘!
It declare that tine thesis entitled "EDUCATIONAL
RIGHTS OF THE MINORITIES UNDER ARTICLE 30 OF THE INDIAN
CONSTITUTION" is the record of bona fide research carried
out by me under the supervision of Prof.(Dr.) V.D.Sebastian
in the Department of Law, Cochin University of Science and
Technology. I further declare that this has not previously
formed the basis of the award of any degree, diploma,
associateship, fellowship or other similar title of
recognition.
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The study was conducted under the able and
efficient guidance (Hf Prof.V.D.Sebastian, former Dean <ni
the Faculty of Law, Cochin University of Science and
Technology (CUSAT). At every stage of the work, his advice
was invaluable. But iknr his constant encouragement and
guidance this work would not have been completed. I can
hardly find words to express my heart-felt gratitude to my
revered Professor.
In conducting this study I received generous help
and coeoperation from several quarters. Here I record my
deep sense of gratitude to Prof.P.Leelakrishnan,
Prof.N.S.Chandrasekharan and other members of teaching
staff of the Department of Law, CUSAT for their constant
encouragement.
I express my profound gratitude and indebtedness
to Prof.K.N.Chandrasekharan Pillai, Dean, iFaculty cflf Law
and Head, Department of Law, CUSAT for his sincere help and
valuable suggestions.
It is with genuine appreciation of the value of
the help afforded to me that I record my thanks to all my
colleagues and friends. I am happy to record my
appreciation of the help and cooperation of my husband and
son who stood by me in the strenuous period of the
preparation of this work.
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I place on record my profound sense of gratitude
to the Librarian and the Library Staff, Department of Law,
CUSAT, for providing all the needed help to utilise the
library. I am also very much indebted to all the members
of the office of the Department of Law.
I acknowledge nqr indebtedness tx> Mr.K.L.Varghese
and Mrs.Santha Varghese, Advocates for providing me an
opportunity to work in their library.
I acknowledge my indebtedness to the Cochin
University of Science and Technology for giving sanction to
carry on my doctoral studies.
I am very much grateful to Mr.K.P.Sasidharan for
typing the thesis neatly and elegantly.
ANNIE JOHN.
PREFACE
In India whose people stand divided by difference
of religion, language, race, culture» and socio-economic
factors, one of the tasks that the constitution makers was
confronted with was to devise a constitutional arrangement
that protects numerical minorities from discrimination and
promises to preserve those characteristics which have
divided them apart from the rest. The present study deals
with the knotty problem of the right of the religious and
linguistic minorities to establish and administer
educational institutions of their choice under Article 30
of the Constitution.
Since the commencement of the Constitution in
1950; a number of conflicts have arisen between the claim
of the state txa regulate matters pertaining to education
and educational institutions and the claim of minorities to
establish and administer educational institutions according
to their own choice. The object of the present study is to
explore whether the judiciary has been successful in
balancing the conflicting rights of the minorities and the
state. The study also seeks to bring forth those judicial
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principles which have governed the operation of these
rights and determined the limits of their application. It
also aims at evaluation of various judicial propositions
for finding out whether they uphold or undermine the
intention and spirit that underlies the_language of these
rights. The study is both narrative and critical and the
materials on which it is mainly based are the cases from
the Supreme Court and tine High Courts decided since the
commencement of the Constitution and reported till the
present, the various reports of the Minorities Commission
both Central and State, the opinion of eminent jurists, the
Constituent Assembly Debates regarding ndnority problems,
the various regulatory measures passed by different State
legislatures (M1 this right etc. The study covers major
issues like w.-h .o.. .i-s. ,a. .m. inority, the minority status and its
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proof, the right to establish and administer educational
institutions, the problems of recognition and affiliation
and state aid (whether this is a privilege or a right),
admission and governing bodies of institutions, the
disciplinary control over the staff of such institutions
and the extent of the power of the State to regulate these
rights.
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A liberal, generous and sympathetic approach is
reflected in the matter of the preservation of the right of
minority so far as their educational institutions are
concerned. Although attempts have been made in the past by
many State legislations to whittle down the rights of
minorities i1: this respect, the ndnorities have resisted
such attempts by approaching the judiciary and the courts
have consistently upheld the rights (ME the ndnority and
have ensured that the ambit and scope of the minority
rights is not narrowed down. The principle which can be
discerned in various decisions of this court is that the
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catholic approach which led to the drafting of the
provisions relating to minority rights should not be set at
naught by narrow judicial interpretation. Article 30 was
given full play by the Supreme Court in several cases in
the first three decades of the Cbnstitution by showering
unlimited rights through judicial interpretations.
It is unfortunate to record that this right has
assumed unlimited and irregular dimensions because of the
lenient approach adopted by the judiciary towards these
rights and the consequent exploitation by the so called
minorities. It is rather ironic that the Supreme Court has
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yet to lay down the meaning and content of the expression
who is a minority and to formulate the limit to the right
under Article 30 more than four decades. after the
Constitution came into being. It is high time for the
judiciary to underline the limits of these rights.
Otherwise an amendment to Article 30 is desirable to that
effect.
The study is divided into nine chapters. First
chapter is concerned with the historical background and
events that ultimately led to the adoption by the
Constituent Assembly of the rights guaranteed to the
minorities. The second chapter deals with who is a
minority under Article 30 of the Constitution and the study
tries to bring out the meaning and content of the
expression minority. Third chapter deals with the proof of
establishment by a minority which is a condition precedent
for the exercise of the right under Article 30 of the
Constitution and what are the indicia in determining the
minority status of an educational institution. In chapter
four, an attempt is made to find out whether recognition
and affiliation can be cflaimed as ea matter of right and
further what regulatory conditions can be attached to the
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grant of recognition and affiliation and under what
circumstances recognition and affiliation can be withdrawn.
Chapter five deals with questions that pertain to financial
aid to minority institutions. Chapter six deals with the
question of the scope of the right of minorities to
determine the composition of the managing bodies of their
institutions. The study in chapter seven is aimed at
ascertaining the scope of the right of minority
institutions in matters of admission of students. In
chapter eight an attempt is made to find out the extent to
which minority institutions have a choice in the selection
of their staff and to find out what regulations can be
imposed on such choice and to ascertain the extent of the
disciplinary control over the staff of such institutions.
The nineth chapter records the conclusion and deals with
the extent of the state's regulatory power over the rights
of the minorities under Article 30 of the Constitution.