By – Priyanshi Bhatia

 IN THE SUPREME COURT OF INDIA

NAME OF THE CASE	The Ahmedabad St. Xavier’s College Society And Another Vs. The State Of Gujarat And Another
CITATION	(1974) AIR(SC) 1389 : (1974) 1 SCC 717 : (1974) 2 SCJ 381 : (1975) 1 SCR 173
DATE OF THE CASE	26-04-1974
APPELLANT	The Ahmedabad St. Xavier’s College Society And Another
RESPONDENT	The State Of Gujarat And Another
BENCH/JUDGE	A. N. Ray, C.J; Y. V. Chandrachud, J; S. N. Dwivedi, J; P. Jaganmohan Reddy, J; M. Hameedullah Beg, J; K. K. Mathew, J; H.R. Khanna, J; D. G. Palekar, J; A Alagiriswami, J )
STATUTES/ CONSTITUTION INVOLVED	Constitution of India, 1950 Gujarat University Act, 1949
IMPORTANT SECTIONS/ARTICLES	Article 25, Article 26, Article 29, Article 29(1), Article 30, Article 30(1)

Abstract

In any democratic country, Integrity and Unity lie at the core and as a foundational stone of the Constitutional Structure, and that no community is left in seclusion or sequestered way. The Minority communities are, more often than not, devoid of being in the mainstream and the preservation of their culture, script language becomes pertinent, which could only be preserved by giving them the right to establish and administer the Minority Education Institute for imparting the Secular education. This paper relates to the case Analysis of the case before the Supreme Court wherein such a right was contested. This paper also provides for the factual matrix of the case, contentions of the parties and analyses the Judgement by giving the conclusion thereto.

                                                                                                                  ~ Priyanshi Bhatia

                                                           INTRODUCTION

To merge and amalgamate the various communities in the mainstream and for providing congruence to its citizens, various Articles of the Constitution empowers such communities. But for the interpretation of the terms and words of the Article, like of Article 30 is as follows, whether there is any conferment of the right to establish and administer the minority institution and if so, under what Article?  What would be the unit or area for adjudging the minority character, whether it would be state or whole country? Though the rights have been conferred like Fundamental, could it be regulated?

The National Commission for Minority Educational Institutions Act, 2004 provides for the definition of the term minority as “a college or institution (other than a university) established or maintained by a person or group of persons from amongst the minorities.”[1]

                                                       FACTS OF THE CASE

The Facts of this case, succinctly, are mentioned herein below as:

That the Petitioners, St. Xavier’s College Society, Ahmedabad, are running the Minority Educational Institute, for providing the Higher Education to the children of Christian Religion especially, but the other religions’ children were also admitted. The college was affiliated under the State Legislation namely Gujarat University Act, 1972, and in particular the Sections 33A, 40, 41, 51A and 52A of the Act. That it is the case of the Petitioners that the said legislation is encroaching upon the running of the Minority Educational Institute Right of them, and thus is in derogation with the Constitution and must be declared Unconstitutional. That the autonomy has been ransacked of the educational institutes, and there is immense interference by the State in running of the Institute. Although the institute is affiliated under such an Act that by itself cannot provide for the University Nominees to be in the bodies that govern and select the people, of all the colleges, and the conversion of the affiliated colleges to the constituent colleges. Also, provides for the consent of the Vice-Chancellor to initiate the disciplinary proceedings against any teaching staff, and the reference to the Arbitration of any dispute that may arise between the Management and the Teaching Staff, in which the Arbitrator would be the person chosen by the Vice-Chancellor.

                                    ISSUE RAISED BEFORE THE COURT

The question that has come for the consideration of the Court of Law is that whether the minorities, both based on religion and language, have the right of establishment and administration of the Educational Institute under Article 30 of the Constitution of India, to impart the Secular and general education.  

                                    ARGUMENTS FROM THE APPELLANT SIDE

1. It has been contended by the counsel of the Petitioner, Nani Palkhiwala, that the Right conferred by the Constitution cannot neither be taken away nor abridged in any manner by the State, and it has been provided under the Article 13(2) of the Constitution, which states that the State shall not make any law that is in derogation or violates the Fundamental Rights of the Citizens, lest such an legislation enacted by the State would be Unconstitutional and Void.
2. The Counsel for the Respondent has contended that the minority institutes have the autonomy over the management, but the provision that provides for seeking the approval of the Vice Chancellor to imitate the disciplinary proceedings against the teaching staff is arbitrary in nature. 
3. The counsel thereafter contended that such an grant or refusal of approval is devoid of any of the guidelines, and as a corollary this would deprive the management of the college of the control that it has over its staff members.      
4. He also contended and criticized the power conferred on the University to appoint its own representative to the body of the governing council.

                        ARGUMENTS FROM THE RESPONDENT SIDE

1. On behalf of the State it has been submitted that the Article 29 and 30 are exclusive in nature, and that the Constitution does not confer the right to get affiliated or recognized.  And that if some Minority institution seeks affiliation or the recognition, then it must comply with the terms and conditions prescribed therefor, unless such right is in derogation to the Right conferred under Article 30(1).

• It has been contended by the learned counsel for the Respondent that the Article 30 has not to be interpreted in the seclusion and isolation from the other provisions but has to be read in the context of the Constitution, in particular with its ideal of the secular state and the object to preserve and strengthen the integrity and unity of the country.

• It has also been contended by the Respondents that the institutes established and administered for imparting the education does not have the Fundamental right to seek the affiliation so that to be exalted to the level of the Statutory University.

                                                RELATED PROVISIONS

1. “Article 25 of the Constitution of India

Freedom of conscience and free profession, practice and propagation of religion-

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion;

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”[2]

• “Article 26 of the Constitution of India

Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property by the law.”[3]

• “Article 29 of the Constitution of India

Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”[4]

• “Article 30 of the Constitution of India

Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice;

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause;

(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”[5]

                                                               JUDGEMENT

1. The court in this case has held the Right of the Minorities to establish and administer the educational Institution of their choice could not be read in any restrictive manner so as to limit it within the contours of language, script or culture of the minorities. The court held that if it is read in an restrictive manner so as to conserve their language, script or culture, that would by itself make redundant the provision.  The court had further held that if the Article 29(1) and 30(1) are read in same sense, then it would imply that any section of citizens, whether religious or linguistic minority or not, would be empowered to establish and administer the education institution. Thus, court concluded that Article 30 only applies to the Religious or linguistic minority, and no other section of the citizens could be included in it, nor it could be read in same breath with Article 29.  

            By placing reliance on the Judgment of Rev. Father Proost v. State of Bihar[6], the court held that if Article 30 is read as an extension to Article 29, it would connote wrong interpretation that institution could be established and administered for imparting the religious teachings or tenets, that would take away the right of minorities to establish and administer the institution of their choice.

• The court held that it has been the consistent view of this court that there is no fundamental right as regards the affiliation. That the measures of affiliation are there for the reason of uniformity, efficiency, and the excellence in the courses that are offered by the institute; and it is in no way derogatory to the right under Article 30.

• The court held that like any other Fundamental Right, the Right to establish and administer the educational institute by the religious or linguistic minority even is not an absolute right. That no right is free from the regulations. Like the regulatory measures are pertinent for the maintenance of the educational character and the content, likewise it is also incumbent for the orderly, efficient and sound administration of the institution.

• The court held that the provisions of Section 33A cannot apply to the Minority Institutions as they have the effect of shifting and endowment of the management to some other agency. That the right to administer means right to conduct own affairs. This right is conferred on some people by the founding fathers of the institutions, thus thereby retaining the autonomy. The court further held that although the right to administer comes with rider clause of regulatory measures, but the improvisations is done by incumbent management, and not getting it done by its replacement.

• The court held that the provisions of Section 51A cannot have the application on the right of the minority institutions to administer, as it would be in violation of their FR.  That the approval of the Vice Chancellor might be in place for the checks and balances on the administration. The court further held that the Section 51A clause b cannot be read so as to imply the permissive nature, as that would have the effect of conferring the arbitrary power on the Vice Chancellor to take away the FR of the minority institutions.

• The court held that object behind the enactment of Article 25 to 30 was the securing and preserving the rights of the religious and linguistic minorities. That the conferment of such FRs has the effect of placing them on the secured pedestal, by removing the vicissitudes of political controversies. The court further held that as long as the Constitution stands in place as it is today, then there could be countenance as to the tampering of those rights. And any act doing so, would tantamount to breach of faith and would be liable to be struck down by the courts. Albeit, the term secular has not been mentioned in the Constitution, but that by itself does not mean that the makers did not want the State to be one.

• The Court held that the provisions of the Constitution have been designed in such a way that there is mysticism in the State’s Secular nature.  Secularism is neither anti-God. nor pro-God, it treats alike the devout, the agnostic and the atheist.

            It further held that the concept of Secularism removes God from the matters of the           State by ensuring that no one is deprived of the Fundamental Right to Religion.

• The idea behind the conferment of the special rights to the minorities is to repose the feeling and sense of security and confidence in them, and not conferring some privilege or pampering any section of the community.  

“The great leaders of India since time immemorial had preached the doctrine- of tolerance and catholicize of outlook. “Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institution and by guaranteeing the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, equality not merely in theory but also a fact.”[7]

                                                              CONCLUSION

It can be concluded that our Constitution contains enough articles to bestow upon the minorities, egalitarianism and the congruence between the citizens. Article 30 clause 1, and the National Educational Institutions Act, 2004 empowers the minority communities for establishing and administering the institute, and the power to get it affiliated with the Central Universities. But since the time these rights have been conferred, there are conflicting claims of the various parties, which the language of the present Articles and Acts do not contemplate, thus intervention of the Supreme Court is invariably warranted by the parties.

That the present case analyzed herein is the landmark judgement on the point, and in future might be the law for the unaided private colleges of the minorities. That under the expansion of the domain of Article 19(1) (g) highest autonomy has been conferred upon them.