Minority 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.

The 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.

Under 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 Independence period.

In 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.

The 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 the Institution.

Among 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.

Among 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.

And 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 and religion…. 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 Institutions.

What 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.

Over 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.

850 words: dated 24.08.2004.
Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002. You can interact with the author at http:// www.maxwellperira.com and maxpk@vsnl.com


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