JAMIA MILIA ISLAMIA

FACULTY OF LAW

MANAGEMENT OF MINORITY INSTITUTION

CONSTITUTIONAL LAW-II

SUBMITTED TO SUBMITTED BY

PROF.ASAD MALIK MOHD GULAM GAUS

B.A. LL. B. (Hons.) (Regular), Sem-IV

Batch of ‘23
 ACKNOWLEDGMENT

I would like to acknowledge the beneficence of Prof. ASAD MALIK in his guidance
throughout the course of completion of this project. It is for this reason I was able to advocate
this work with resources informative as much as concise.

Likewise, I would also like to take this opportunity to extend my gratitude to friends and family
for enhancing my emotional well-being and providing with financial sufficiency to ensure I
would not have to cobble for resources in my quest of penning down this work.

Lastly, may it be known that THE ALMIGHTY is the reason above all for the good deeds
found herein.

PRAISE BE TO THY LORD, ONE AND ALL, THE ALMIGHTY.

Mohammad Gaus

Student ID: 20185481

B.A. LL.B. (Hons.), Sem-IV

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INTRODUCTION

Lord Acton said “The most certain test by which we judge whether a country is really free is
the amount of security enjoyed by the minorities.”
Framers of the Indian Constitution in their wisdom did not include any restriction under
article 30(unlike in the case of other fundamental right). The Constitution makers have
endeavoured to unite the people of our country in a democratic Republic.
The idea to make the provision for minorities to protect their educational right is not
inequality towards the privileged classes but it definitely gives the sense of security to the
minority class people.

It is clear from the census that the minorities in India are not well-off when compared with
the privileged class. Therefore, it is important to give the minorities certain legal rights, thus
helping them uplifting their position in the society. The idea behind implementation of article
30 of the Indian Constitution is to provide the minorities with the Fundamental Right to
establish and govern their own educational institution thus providing benefit to the people of
their community.The provision laid down under the constitution allowing the minority to
establish and set up their own institution has been proved beneficial to the minority
community in terms of educational growth e.g Jains are the minority community that has the
highest literacy rate and the majority of their population is educated

Under clause (a) of Art.26 every religious denomination has a right to establish and maintain
institution for religious and charitable purpose. The words “establish and maintain” in
Art.26(a) must be read together and therefore it is only those institution which a religious
denomination establishes which it can claim to maintain it.
In Azeez Basha v. Union of India1, 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):
a) That the institution was established by the community and,
b) Its administration was vested in the community.

1
AIR 1968 S.C. 662.

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THE EXPRESSION ‘ADMINISTER’

The word “administer” under article 30(1) of the Constitution means the right to manage and
conduct the affairs of the institution. It is open to a university to impose reasonable conditions
upon a minority institution for maintaining the requisite educational standard and efficiency
like-

1. Qualifications of teachers to be appointed in the institution;

2. Conditions of service e.g the age of superannuation of teachers;
3. Qualifications for entry of students;
4. Courses of study (subject to special subjects which the institution may seek to teach)
5. Hygiene and physical training of students.12

In State of Bombay v. Bombay Education Society, it was held that “Where…..A minority like
the Anglo Indian community, which is based, inter-alia, on religion and language has the
fundamental right to conserve its language, script and culture under Article 29(1) and has the
right to establish and administer educational institution of their choice under Article
30(1)5 surely then there must be implicit in the fundamental right, the right to impart
instruction in their own institutions to children of their own community in then own
language…….such being the fundamental right the police power of the state to determine the
medium of instruction must yield to the fundamental right to the extent it is necessary to give
effect to it and can not be permitted to run counter to it”

Milli Talimi Mission Bihar and Ors. vs State of Bihar and Ors.2– The Supreme Court has
clearly held that running a minority institution is a fundamental right and as important as
other rights presented to the citizen of the nation. If the State Government declines to give
acknowledgment or a university declines to concede affiliation to a minority educational
institution without just and adequate grounds, the immediate outcome is to crush the very
presence of the institution itself. In this manner, refusal to give recognition or affiliation by
the statutory authority without just and adequate grounds is an infringement of the right
ensured under Article 30(1) of the Constitution.

In State of Kerala v. Very Rev. Mother Provincial,

Hidayatullah C.J., speaking for the unanimous Court, held: “Administration means
'management of the affairs' of the institution”. This management must be free of control so that
the founders or their nominees can mould the institution as they think fit, and in accordance
with their ideas of how the interests ofthe community in general and the institution in particular
will be best served. No part ofthis management can be taken away and vested in another body
without an encroachment upon the guaranteed right." He also held that there is, however, an

2
1984 (4) SCC 500

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exception to this and it is that the standards of education are not a part of management as
such.These standards concern the body politic and are dictated by considerations of the
advancement of the country and its people. Therefore, if universities establish the syllabi for
examinations they must be followed, subject however to special subjects which the institutions
may seek to teach, and to a certain extent the State may also regulate the conditions of
employment of teachers and the health and hygiene of students. Such regulations do not bear
directly upon management as such although they may indirectly affect it.
In Azeez Basha v. Union of India3, 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):22 a)
That the institution was established by the community and, b) Its administration was vested in
the community.

Article 30 has been interpreted by larger bemches of the court such as those of judges in
Ahmedabad St.Xavier College(1974). In 2003, an 11 Judge Bench of the Supreme Court
decided the question of scope of right of minorities to establish and administer educational
institutions of their choice under Article 30(1) read with Article 29(2) of the Constitution.
The majority opinion delivered by 6 Judges held that only the State can determine the status of
a religious or linguistic minority and religious and linguistic minorities, who have been put on
a par in Article 30, have to be considered State-wise. However, the right under Article 30(1)
cannot be such as to override the national interest or to prevent the Government from framing
regulations in that behalf and any regulation framed in the national interest must necessarily
apply to all educational institutions, whether run by the majority or the minority. Such a
limitation must necessarily be read into Article 30. Government regulations cannot destroy the
minority character of the institution or make the right to establish and administer a mere
illusion. However, right under Article 30(1) is not absolute or above other provisions of the
law and regulatory measures can be imposed for ensuring educational standards and
maintaining excellence thereof especially in professional institutions4.

RIGHT TO ADMINISTER PROPERTY OWNED BY THE DENOMINATION-

Under clauses(c) and (d) of Art.26 a religious denomination has a right to acquire and own
property and to administer such property in accordance with the law. The right to administer
property owned by a religious denomination is limited right, and subject to the regulatory
power of the State in clause (2)(a) of Art 25 and also any general property. Thus there is a clear
distinction between the right to manage its own affairs in matters of religion and right to
manage its property by a religious denomination. The right of a religious denomination to
manage its property has thus placed on different footing from the right to manage its own
affairs in matters of religion. The former is a fundamental right which cannot be taken away

4
T.M.A Pai Foundation(2003)

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except on grounds mentioned in Art.25,while latter can be regulated by the law, that is,it can
be abridge or taken away by a valid law.5

A single judge of Calcutta High court in March 2014 struck down the above provision as
violative of article 30 that gurantees religious and linguistic minorities the right to establish
and administer educational institution of theor own choice. Later on in December 2015, a
Division Bench of the High Court upheld that decision. In T.M.A. Pai(2003), an 11 judge bench
reiterated that management of minority institutions should have freedom in day-to-day affairs
of the institution,for example, in appointment of teaching and non-teaching staff and
administrative control. However, minimum qualification, experience and other condition may
be fixed by the government.

THE DUAL TEST CRITERION

In Rev.Sidharjbhai(1963), a six-judge bench of the supreme court observed that every

government regulation in respect of minority institution shall be valid only when it satisfies the
dual test, i.e.,it is regulative not destructive of the organization of the minority character and it
makes the minority institution an effective vehicle of minority education.
Justice Lalit, who authored the latest Judgement , did refer to the Kerala Education Bill
case(1957)of the Supreme Court but he overlooked the fact that a seven judge bench headed
by the Chief Justice S.R.Das had held that “the dominant word in Article 30 is ‘choice’ and the
content of the right under Article is as wide as the choice of the particular minority community
will make it. Every Minority community can thus make a choice in respect of relationship with
the government, the courses taught and the day to day administration, including right to select
its teachers.
Similarly in Rev.Father W.Proost(1969) where a five-judge bench had struck down Section
48-A of Bihar State Universities Act,1960 that provided that no appointment,dismissal or
reduction in the rank of any teacher could be made by any governing body of a minority
institution without the recommendation of University Service Commission.

In the St. Stephen's College case6, the Supreme Court with regard to Article 30(1), observed
as follows:-
"The minorities whether based on religion or language have the right to establish and
administer educational institutions of their choice. The administration of educational
institutions of their choice under Article 30(1) means 'management of the affairs of the

5
S.P Mittal v. Union of India , AIR 1983 SC 1
6
University Of Delhi

6
institution'. This management must be free from control so that the founder or their nominees
can mould the institution as they think fit, and in accordance with their ideas of how the
interests of the community in general and the institution in particular will be best served. But
the standards of education are not a part of the management as such. The standard concerns
the body politic and is governed by considerations of the, advancement of the country and its
people. Such regulations do not bear directly upon management although they may indirectly
affect it. The State, therefore, has the right to regulate the standard of education and allied
matters. Minority institutions cannot be permitted to fall below the standards of excellence
expected of educational institutions. They cannot decline to follow the general pattern of
education under the guise of exclusive right of management. While the management must be
left to them, they may be compelled to keep in step with others.”
It is to be noted that under the garb of constitutional protection the minoritiy institution do not
have right to make the institution into commercialization.it was held in Delhi Abibhavak
Mahasangh v. Union of India7

7
AIR 1999 Del 128, 149.

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 Conclusion

Minority educational institutions have a great role to fulfill for the nation and minorities of
the State as well. The religious and the linguistic minorities also need to understand that they
are the only minorities who need special protection from the majorities. These religious and
linguistic minorities should keep in mind their special rights like their Independent State,
Reasonable Fee Structure, Government and Private aid, the loyalty towards their own group,
etc and help the nation in servicing the real minorities like the poor people, their children,
women, the Dalits, Adivasis, women of the tribal groups and also those who are not mentally
and physically fit, because in spite of the additional regulations and less restrictions the
minorities should not wary about establishing aided nature of the institutions but go and help
these poorer sections of the society.

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