Institutions and Rights
By Maxwell Pereira
An extra-ordinary Bench of the Supreme Court consisting of eleven
Judges is currently hearing a matter concerning Minority Rights
- particularly in respect of Minority Institutions. Minorities
are viewing this matter before the Apex Court, as an attempt to
persuade the Court to revise the definition of Minority Educational
Institutions, which are now protected under Article 29 and 30
of the Constitution of India.
Chief Justice of India - Mr. Justice B.N. Kirpal, is chairing
the Bench hearing the case. Two of the leading Christian Institutions
in India - the St. Stephen's College, New Delhi and the St. Xavier's
College, Mumbai are both Petitioners and Respondents in the case.
Article 29 of the Constitution, interests of Minorities are protected.
Under Article 30, the Rights of Minorities "to Establish
and Administer their own Educational Institutions" is guaranteed.
However, it is apparent now that a Herculean effort is being made
by interested parties to water down these fundamental rights,
which the Forefathers of the Constitution had conferred on the
Minorities - including the Christians, in India. In fact, an eminent
legal commentator and a former Additional Solicitor General of
India was heard saying in a recent television interview that there
is every likelihood of the Judges taking a new holistic approach
and re-examine the decisions in previous Judgements over the post
upholding fundamental rights of minorities and especially those
of Indian Christians, many a luminary has played a role. Among
them come to mind the names of two Jesuits. The first, Rev Fr
Jerome D'Souza of the Society of Jesus who played a great role
in the then Constituent Assembly and also as Nehru's special nominee
to the United Nations General Assembly. He was ushered into the
national stream by the late Chakravarti Rajagopalachari. On an
assurance given by Sardar Vallab-bhai Patel to Fr. Jerome and
others, the Indian Christians then surrendered their claim to
have Reservation of Seats in the Assembly and in Parliament -
and in return they were assured that the new Constitution would
give the minorities Fundamental Rights including those in Articles
29 & 30, and that these Rights will be permanent.
second, Rev Fr Theo A. Mathias also of the Society of Jesus -
then with the St. Xavier's College, Ranchi and now with the XLRI
Jamshedpur. It was in the case reported in AIR 1969 SC 465 in
which Fr Theo was the Intervening Petitioner, that the Indian
Christians in general and St. Xavier's Ranchi in particular, won
a great victory - wherein the Court held that the Right of the
Minorities to establish and administer educational institutions
granted under Article 30 cannot be watered down by anything contained
in Article 29. In this case, three persons representing Hindu,
Muslim and Aboriginal interests had contended that a Christian
Educational Institution has no absolute right to select its own
Principal and other members of the staff and such appointments
can be regulated and interfered with by the State Government.
The Court held that so long as the staff selected had the necessary
qualifications, the choice of candidates is the prerogative of
other notable cases where rights of minorities in their educational
institutions have been vehemently protected are - the case reported
in AIR 1958 SC 956 where the Supreme Court struck down the offending
provisions of the Kerala Education Bill
and the decision
reported in AIR 1963 SC 540 which was to the same effect. In AIR
1964 Andhra Pradesh 277, where it was held that a Nun expelled
from the Convent or Nunnery and who continued as a teacher in
the school had no right to wear the Religious Habit of the Congregation.
In AIR 1954 Bombay 468 where it was held that no one had a right
to dictate terms to a Minority Institution regarding management
and administration. And in AIR 1957 Calcutta 524 where it was
ruled that a Christian Institution could prevent Hindu students
from performing Pooja within the College campus.
the many things Christians are credited with is their contribution
in educating India. In instilling among the people they groomed
and taught in their Institutions, a strong sense of right and
wrong. And especially among the downtrodden and the oppressed,
to know their own rights, and to fight for them.
what is amazing is that millions of those educated in Christian
Institutions over the past couple of centuries in this country,
survived the so called proselytising machinations of the 'devious'
missionaries by not getting 'converted' - retained their own faith
. be it as a Hindu, Muslim, Sikh or else, and
with the education imparted by the very Christian Institutions
went on to excel in whatever field chosen, to make themselves,
their country and their alma mater proud. Be it in the bureaucracy,
academia, industry or commerce
even in greener pastures
beyond our own shores. Undoubtedly, the majority of those who
steered our country's destiny since Independence were and are
- including in the present dispensation, products of Christian
more, the first choice of everyone for an admission for one's
own offspring still remains a Christian Institution. Even for
those who externally cry hoarse against such Institutions or try
to control them by means right or wrong, fair or foul. Why then
this fanatic hypocritical fear of the Christian institutions or
the urge to interfere in their internal management.
the years it is sad that some courts have shown a tendency to
allow the State to encroach upon the Fundamental Rights of Minorities;
and as a result, the right to select and choose students for admission
into Minority Educational Institutions have been cut down to about
50%. In the event the final judgement in the pending Supreme Court
case goes against the Minorities, the right to select the rest
of the 50% students too is likely to vanish.
words: dated 24.08.2004.
Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002.
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