Sie sind auf Seite 1von 33

Nirma University

Institute of Law

III Semester B.Com.LL.B. (Hons.)Course

Report on Constitutional Law On legal study on Rights of Minority Educational Institutions

For the academic year 2011-2012 Prepared & Submitted By Vivek Firoda (10bbl069)

Submitted to:

Mr. Tarkesh Patel

Page 1 of 33

ACKNOWLEDGEMENT
A project report usually falls short of its expectations unless and until it is guided by the right person at the right time. I have been guided by a number of persons throughout the span of this research project. There are number of hands in making this project fruitful and worthy. First of all, I would like to acknowledge my subject coordinator Mr. Tarkesh Patel who handed me the authority to carry on the research project on a worth research doing topic i.e. Rights of Minority Educational Institutions and provided me with valuable suggestions and guidelines at every level to make the project a valuable one and worthy. Further, I would like to acknowledge my friends who also supported me and guided me to carry out the research in a well mannered way.

Page 2 of 33

DECLARATION

I, VIVEK FIRODA hereby declare that the project is the compilation out of my cent percent true effort, it does not carry any such matter and it is not the result of any such action that affects its authenticity.

DATE: 13.09.2011

______________________ Name and Signature VIVEK FIRODA (10bbl069)

Page 3 of 33

CERTIFICATE
This is to certify that VIVEK FIRODA (10bbl069) is a student of IIIrd Semester pursuing B.Com, LL.B (hons.), from Nirma University and the research areas mentioned in the index have been performed by him with full sincerity and dedication under my guidance and support.

DATE: 13.09.2011

___________________ Name & Signature

__________________________ Name & Signature (Supervisor) Mr. Tarkesh Patel

VIVEK FIRODA (10bbl069)

Page 4 of 33

TABLE OF CONTENTS S.No.


1.

Particulars
CHAPTER-1 Introduction  Definition of Minority  Literature Review

Page no

6 11

2.

CHAPTER-2 Methodology  Objectives of the project  Hypothesis of the project  Scope of the project 13

3.

CHAPTER-3 Guidelines given by the Government  Latest Amendments 22

4.

CHAPTER-4 Madrasas in India 24

5.

CHAPTER-5  Case Laws CHAPTER-6 27

6.

y Conclusion y References

32 33

Page 5 of 33

DEFINITION OF MINORITIES

HISTORY OF MINORITIES IN INDIA

Recognition and protection of minority rights in India was hardly an issue prior to the starting of twentieth century because of the hegemony of minority over majority and ruling class minorities unwillingness to interfere within the private, personal and religious matters of either group. All people had freedom to be governed by their religious and customary laws within their private affairs. The issue became relevant during early twentieth when Britishers gradually started power sharing with the Indian natives; and minorities especially Muslims led by Jinnah suspected their protection in the hands of majority Hindus. To address such fear Britishers along with certain princely states made special provisions for minority representation in legislature and government jobs.

The Separate electorate system introduced by Britishers had two fold objectives

(1) To mobilize several communities especially of minorities in India to participate in power sharing; (2) To prevent the strong nationalism growing under the single umbrella of Congress.

The separate electorate system whereas criticized by congress; minorities led by Jinnah welcomed this model. Dr.B.R. Ambedkar a dalit leader also started demanding for separate electorate system for dalits an oppressed category of Hindu society. However after an assurance given by congress and Mahatma Gandhi that in independent India special provisions shall be made for economic and social minorities he relinquished his demand of separate electorate for dalits.

2.1 Constitutional Assembly Stand on Minority Rights: Nation building is a dynamic process of integrating a plurality of social groups into a common framework of identity and loyalty ill a political community. While convincing to few representatives in constituent assembly who had

Page 6 of 33

created a little disagreement about the need for pluralism and special provision of justice for minorities Dr. B.R. Ambedkar said:

To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the state. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority. In the history of negotiations for preventing the partition of the Ireland, Redmond said to Carson ask for any safeguard you like for the Protestant minority but let us have a United Ireland. Carsons reply was Damn your safeguards, we dont want to be ruled by you. No minority in India has taken this stand. They have loyally accepted the rule of the majority, which is basically a communal majority and not a political majority. It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.

Similar view was also expressed by Govind Ballabh Pant. With this objective the Constituent Assembly set up an Advisory Committee under the chairmanship of Sardar Patel on the subject of Fundamental Rights including rights of minorities, with the twin objectives of eliminating the chance of religion exploiting the State and vice-versa.

The Advisory Committee appointed five sub-committees. One was the minorities sub-committee headed by H.C. Mukherjee a Christian leader from Bengal. Though Initially the Advisory Committee recommended, as a general rule, that seats for the different recognized minorities like Muslims, Scheduled Castes, Sikhs, Anglo Indians, Indian Christians, Parsis and tribals living in the plains of Assam should be reserved in different legislatures on the basis of their population; At a Later stage it rejected separate electorates of any kind, as in the past they had sharpened communal differences and led to the partition of the country.

Page 7 of 33

2.2 The Sub-Committee Report on Minorities: - This subcommittee after thorough analysis of present future aspect of minorities and country, prepared an interim report which dealt with the question of Fundamental Rights from the point of view of minorities. The report recommended

1. All citizens are entitled to use their mother tongue and the script thereof, and to adopt study or use any other language and script of their choice.

2. Minorities in every unit shall be adequately protected in respect of their language and culture, and no government may enact any laws or regulations that may act oppressively or prejudicially in this regard.

3. No minority, whether of religion, community or language shall be deprived of its rights or discriminated against in regard to the admission into state educational institutions, nor shall any religious instruction be compulsorily imposed upon them.

4. Notwithstanding any custom, law, decree or usage, presumption or terms of dedication, no Hindu on grounds of caste, birth or denomination shall be precluded from entering in educational institutions dedicated or intended for the use of the Hindu community or any action thereof, and

5. No disqualification shall arise on account of sex in respect of public services or professions oradmission to educational institutions saves and except that this shall not prevent the establishment of separate educational institutions for boys and girls.

Page 8 of 33

The Advisory Committee accepted the recommendations partially and recommended the following clause to the Constituent Assembly:

1. Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or, regulations may be enacted that may operate oppressively or prejudicially in this respect. 2. No minority whether based on religion, community or language shall be discriminated against with regard to admission into state educational institutions, nor shall any religious instruction be compulsorily imposed on such minority. 3. (a) All minorities whether based on religion, community or language shall be free in any unit to establish and administer educational institutions of their choice. (b) The State shall not, while providing state aid to schools, discriminate against schools under the management of minorities whether based on religion, community, or language.

The clause was incorporated as clause 24 with some drafting changes in the Draft Constitution prepared by the Constitutional Advisor.

Page 9 of 33

MEANING OF MINORITY UNDER INDIAN CONSTITUTION

As earlier said the Constitution neither defines the term minority nor provides details relating to the geographical and numerical specification of this concept though it talks about the rights of minorities under Article 29 and 30. . However The U.N. Sub-Committee on Prevention of Discrimination and Protection of Minorities has defined minority as A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law. As per the existing standard of human rights minority is a group which basically possess following characteristics (1) Its members experience discrimination, segregation, oppression, or persecution by a dominant group; (2) It is characterized by physical or cultural, linguistic etc traits that distinguish from the dominant group; (3) It is a self-conscious social group (4) Membership in a minority is generally involuntary; and (5) The members of a minority, by choice or necessity, typically marry within their own group.

The term minority based on religion should be restricted only to those religious minorities, e.g., Muslims, Christians, Jains,Buddhists, Sikhs, etc, which have kept their identity separate from majority, namely, the Hindus. In TMA Pai foundation case the eleven judges bench of the Supreme Court confirmed the position that minority status of a community is to be decided with reference to the state population. Further the Supreme Court has ruled in S.K. Patro v. State of Bihar, that a minority claiming privilege under article 30 should be minority in person residing in India. Foreigners not residing in India do not fall within the scope of article.30.

Page 10 of 33

LITERATURE REVIEW
1. DEFINITION OF MINORITY 1.1 HISTORY ABOUT MINORITY
The concept of minorities has been a controversial aspect right from the time such provisions relating to them were mooted to be introduced in the Constitution of India. Maulana Abul Kalam Azad did not espouse the concept of minorities as he believed in the singularity of the Indian nation and polity. This was at a time when the Constituent Assembly of which he was a member was debating the prospects of having concrete provisions for the minorities. The initial position of the Advisory Committee in the Constituent Assembly was to protect the minorities with respect to their language, script and culture. The terminological reference to the now identified class of minorities was sections of citizens. The Motilal Nehru Commission or the Sapru Commission never tried to define the term minority. The UN Sub Commission on Prevention of Discrimination and Protection Minorities defines minorities as including those non document groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the population and they should be a number such that they are sufficient by themselves to preserve such traditions and traits apart from being loyal to the state where they reside in. The International Covenant on Civil, Political and Social Rights (ICCPSR) in its Article 27 despite not explicitly defining the term minority provides that the states where such groups exist, the state must undertake to ensure that they are not denied the chance for the upkeep and promotion of their culture. Even the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities that was adopted by the United Nations General Assembly on 18th December, 1992 does not define minority groups. The National Minority Commission in section 2 (c) defines minorities as those communities which are notified by the central government; and which as per the central government notification includes Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians) as of 23rd October and it further goes on to

Page 11 of 33

clarify that any reference to the Hindus as that which would essentially include the Sikhs, Jains or Buddhists.

2. GUIDELINES GIVEN BY THE GOVERNMENT


FOLLOWING CONDITIONS ARE LAID DOWN FOR GRANT OF RECOGNITION TO MINORITY EDUCATIONAL INSTITUTION: i. The aims and objectives of the educational agency incorporated in its bylaws should clearly specify that it is meant to primarily serve the interests of the minority community to which it belongs. ii. The minority educational institution shall not compel any of its students or employees to take part in any of its religious activities. iii. The minority educational institution shall observe general laws of the land relating to educational institutions. iv. The minority educational institution will not use its privilege as minority institution for any pecuniary benefit.

Page 12 of 33

RESEARCH PROBLEM
THE PROBLEM IS MAINLY CENTERED AROUND WHAT ALL ARE THE GRANTS OF THE MINORITY INSTITUTIONS AND THE RULES AND REGUALTIONS OF AN MINORITY EDUCATIONAL INSTITUTION AND THE CASES RELATED TO IT

OBJECTIVE
TO KNOW ABOUT THE RIGHTS OF MINORITY EDUCATIONAL INSTITUTIONS IN INDIA

HYPOTHESIS THE RIGHTS OF THE VARIOUS EDUCATIONAL INSTITUTIONS ARE SAME AS THAT OF NORMAL EDUCATIONAL INSTITUTIONS

SCOPE RIGHTS RELATING ONLY TO MUSLIM EDUCATIONAL INSTITUTIONS

METHODOLOGY THE METHODOLOGY USED IS DOCTRINAL RESEARCH METHOD

Page 13 of 33

GUIDELINES GIVEN BY THE GOVERNMENT


NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS

ORIGIN OF THE COMMISION

The genesis of the National Commission for Minority Educational Institutions can be traced to the UPA Governments manifesto called National Common Minimum Program. In the NCMP, in its Section on National Harmony, Welfare of Minorities, it was mentioned that a Commission for minority educational institutions would be established which will provide direct affiliation for minority professional institutions to Central Universities.

The NCMEI Act was an outcome of detailed consultations in a meeting held on Minority Education and Welfare at New Delhi which was followed by subsequent discussions in the National Monitoring Committee on Minority Education.

The Government brought out an Ordinance in November 2004 establishing the Commission. Later a Bill was introduced in the Parliament in December 2004 and both Houses passed the Bill. The NCMEI Act was notified in January 2005.

The Commission is mandated to look into specific complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice. Protection of rights of minorities are enshrined in Article 30 of the Constitution which states that all minorities, whether based on religion or language shall have the right to establish and administer educational institutions of their choice.

Thus, the Commission can look into any complaints relating to violation and deprivation of rights of minorities to establish and administer educational institutions of their choice.

This is the first time that a specific Commission has been established for protecting and safeguarding the rights of minorities to establish and administer educational institutions of their
Page 14 of 33

choice. This Commission is a quasi-judicial body and has been endowed with the powers of a Civil Court. It is headed by a Chairman who has been a Judge of the Delhi High Court and two members to be nominated by Central Government. The Commission has 3 roles namely adjudicatory function, advisory function and recommendatory powers.

So far as affiliation of a minority educational institution to a university is concerned, the decision of the Commission would be final.

The Commission has powers to advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it.

The Commission can make recommendations to the Central Government and the State Governments regarding any matter which directly or indirectly deprives the minority community of their educational rights enshrined in Article 30.

The empowerment of the Commission has provided a much needed forum for the minority educational institutions to highlight their grievances and to get speedy relief. The subject matter of a petition / complaint include non issue of No Objection Certificate (NOC) by the State Governments, delay in issue of NOC, refusal / delay in issue of minority status to minority educational institutions, refusal to allow opening of new colleges / schools / institutions by minorities, refusal to allow additional courses in minority educational institutions, delay / refusal in the release of grants in-aid, refusal to give financial assistance, denial of permission to create new posts of teachers in minority educational institutions even though there is increase in the number of students, approval of appointment of teachers being denied, non equality in pay scales of minority schools teachers as compared to Government school teachers denial of teaching aids and or other facilities like computers, library, laboratory etc. to minority educational institutions on par with Government institution, non availability of books in Urdu in all subject for students of Urdu school, non appointment of Urdu knowing teachers, in adequate payment to Madrasa employees, non-release of grants to Madrasa, non-payment of retirement benefits to teachers and non-teaching staff of minority schools, extension of Sarva Shiksha Abhiyan facilities to minority educational institution especially in the deprived rural areas etc.
Page 15 of 33

FOLLOWING CONDITIONS ARE LAID DOWN FOR GRANT OF RECOGNITION TO MINORITY EDUCATIONAL INSTITUTION: i. The aims and objectives of the educational agency incorporated in its bylaws should clearly specify that it is meant to primarily serve the interests of the minority community to which it belongs. ii. The minority educational institution shall not compel any of its students or employees to take part in any of its religious activities. iii. The minority educational institution shall observe general laws of the land relating to educational institutions. iv. The minority educational institution will not use its privilege as minority institution for any pecuniary benefit. v. The minority educational institution shall charge the fees as prescribed by competent authority. vi. The minority educational institution shall appoint teachers as per qualifications laid down by the authority concerned but it will be advisable for them to select teachers and other employees through employment exchange or open advertisement. vii. In all academic, administrative and financial matters rules and regulations laid down by respective statutory authorities from time to time shall be wholly applicable to these institutions. viii. The minority educational institution shall do nothing which may come in the way of communal and social harmony. ix. Fifty percent of seats permitted to be filled up from minority communities shall be equally distributed between free and payment seats.

Page 16 of 33

FOLLOWING GUIDELINES SHALL BE APPLICABLE FOR ADMISSION TO MINORITY EDUCATIONAL INSTITUTIONS: The following policy guidelines are hereby notified for grant of minority status to educational institutions seeking affiliation to Guru Gobind Singh Indraprastha University and the Board of Technical Education, Delhi :-

1 DEFINITION OF MINORITIES FOR THE PURPOSE OF MINORITY-RUN EDUCATIONAL INSTITUTIONS.

Minority communities for the purpose of establishing minority educational institutions means a community notified as such under the Government of Delhi Minorities Commission Act 1999.

2 COMPETENT AUTHORITY FOR ACCORDING RECOGNITION TO MINORITY EDUCATIONAL INSTITUTIONS.

The Competent authority to grant recognition to minority educational institutions in Delhi will be the Secretary of the Department concerned in the Government of Delhi.

Page 17 of 33

3. CRITERIA FOR RECOGNITION OF MINORITY EDUCATIONAL INSTITUTIONS

a) The educational institution should have been established by a minority community defined under para 1 b) The agency managing the institution should have been registered under the Societies Registration Act, 1860. c) The Managing Committee of the Society and Governing body of the institution should be wholly or substantially manned by the representatives of the respective minority community. d) The educational institution should have been running for at least two academic years in accordance with the regulations laid down by statutory authorities such as the State Government, AICTE, University, Board of Technical Education, etc. e) Merely giving a nomenclature as that of belonging to a minority community will not entitle the institutions to be recognized as a minority educational institution.

4. CONDITIONS FOR GRANT OF RECOGNITION TO MINORITY EDUCATIONAL INSTITUTIONS

i)

The aim and objectives of the educational agency incorporated in its byelaws should clearly specify that it is meant to primarily serve the interest of the minority community to which it belongs.

ii)

The minority educational institution shall not compel its students or employees to take part in any of its religious activities.

Page 18 of 33

iii) The minority educational institution shall observe general laws of the land relating to educational institutions. iv) The minority educational institution will not use its privilege as minority institution for any pecuniary benefit. v) The minority educational institution shall charge the fees as prescribed by competent authority concerned. vi) The minority educational institution shall appoint teachers as per the qualifications laid down by the statutory authority concerned from time to time. vii) In all academic, administrative and financial matters the rules and regulations laid down by the respective statutory authorities from time to time shall be wholly applicable to these institutions. viii) The minority educational institution shall do nothing which may come in the way of communal and social harmony. ix) Fifty percent of the seats permitted to be filled up from minority communities shall be equally distributed between `free and payment seats.

5. ADMISSIOIN

All admissions shall be made on the basis of merit as per the Common Entrance Test held by competent authority. No admission outside the merit list shall be allowed until and unless competent authority allows to do so.

Page 19 of 33

6. PROCEDURE FOR SEEKING RECOGNITION AS A MINORITY EDUCATIONAL INSTITUTION

i) Educational agencies who wish to seek recognition of their institution as a minority institution should submit an application on a prescribed form (Annexure I) to the competent authority concerned. ii) A fee of Rs.10,000/- will be charged for processing the proposal and inspection of the institution. In case of renewal of recognition a fee of Rs.5,000/- shall be charged. iii) Respective competent authority shall examine the proposals and get the institute inspected, if required. iv) The recognition given by the competent authority shall be valid for a period of three academic years. During the validity period of recognition the competent authority can withdraw recognition at any time. v) The institution will have to apply to the competent authority for revalidation of the recognition at least three months before the expiry of the period of validity.

Page 20 of 33

7.

WITHDRAWL OF RECOGNITION

The competent authority can withdraw the approval or recognition of any minority educational institution on following grounds:

i)

If the educational institution subsequent to grant of approval as minority educational institution modified/revises/amends the constitution, aims and objectives on the basis of which approval was accorded.

ii)

If the educational institution fails to adhere to the norms and conditions relating to fee structure, admission procedure, staff pattern and other qualifications, etc. prescribed by competent authority.

iii)

If at any time the educational institution fails to meet the requirements prescribed by competent authority or other statutory authorities under their policy guidelines for recognition of the institution as minority educational institution.

iv)

Any other circumstances which in view of competent authority warrants withdrawal of recognition of minority educational institution.

Provided that recognition once given will not be withdrawn unless competent authority has given sufficient opportunity to the minority institution to show cause as to why the recognition given should not be withdrawn.

Page 21 of 33

LATEST AMENDMENTS
Bill to amend Minority Educational Institutions Act gets Parliament nod Published Parliament gave its nod of approval to the Bill to amend the National Commission for Minority Educational Institutions Act. Now, the Centre will take a decision on the status of the minority educational institutions without consulting state governments. The Human Resource Development Minister Kapil Sibal said that the amendment Bill was a procedural act and did not concern the establishment of a university. This is substantiated in the original act of 2004, which states a definition of the minority educational institution as a college or an institution other than a university established or maintained by a person or group of persons from amongst the minorities.

In the amendment to the Act the words 'other than a university' have been omitted. Further, the amendment has substituted the words 'established and maintained' with 'establish and administer'. After the amendment is in place, the number of members of National Commission for Minority Educational Institutions will also be increased eventually from the existing two to three.

The Bill to amend the National Commission for Minority Educational Institutions Act had earlier been passed by the Lok Sabha and recently endorsed by the Rajya Sabha as well, by a voice vote.

It was decided to do away with the consultation mechanism, in order to avoid any contradiction from any of the state government or its agencies which could have been a party before the commission. An Act further to amend the National Commission for Minority Educational Institutions Act, 2004.BE it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:-

Page 22 of 33

1.

Short title and commencement. - - (1) This Act may be called the National Commission for Minority Educational Institutions (Amendment) Act, 2010.(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2.

Amendment of section 2. - In section 2 of the National Commission for Minority Educational InstitutionsAct, 2004 (hereinafter referred to as the principal Act),-(i) clause (b) shall be omitted;(ii) for clause (g), the following clause shall be substituted, namely:'(g) "Minority Educational Institution" means a college or an educational institution established and administered by a minority or minorities;'.

3.

Amendment of section 3. - In section 3 of the principal Act, in sub-section (2), for the words "two members", the words "three members" shall be substituted.

4.

Amendment of section 10. - In section 10 of the principal Act, for sub-section (1), the following sub-section shall be substituted, namely:-"(1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose.".

Amendment of section 12B. - In section 12B of the principal Act, in sub-section (4), the words "and in consultation with the State Government" shall be omitted.

Page 23 of 33

MADRASAS IN INDIA

In India, there are around 30,000 operating madrasahs. The majority of these schools follow the Hanafi school of thought. The religious establishment forms part of the mainly two large divisions within the country, namely the Deobandis, who dominate in numbers (of whom the Darul Uloom Deoband constitutes one of the biggest madrasas) and the Barelvis, who also make up a sizeable portion (sufi-orientated). Some notable establishments include: Jamia Ashrafia, Mubarakpur, Manzar Islam Bareilly, Jamia Nizamdina New Delhi, Jamia Nayeemia Muradabad which is one the largest learning centres for the Barelvis ministry of Government of India has recently declared that a Central Madrasa Board would be set up. This will enhance the education system of madrasas in India. Though the madrasas impart Quranic education mainly, efforts are on to include Mathematics, Computers and science in the curriculum.

Expansion of Indian Madrasahs

After the British occupation of India and the emergence of Darul Uloom Manazar-E-Islam Bareilly Shareef, Indian Muslim Scholars left India to establish madrasas in other regions of the world. Some of the most notable of these madrasas are Darul Uloom Holocombe, which produced scholars such as Sheik Ibrahim Memon Madani, or Darul Uloom Al-Madania. These offshoot schools symbolize an emotional drive based upon both religion and patriotism that is not evident elsewhere.

Page 24 of 33

FEDERATION OF MUSLIM EDUCATIONAL INSTITUTES LAUNCHED Federation of Muslim educational institutes launched

Aiming to modernise the community's educational centres, including the madrasas (religious schools), the Jamat-e-Islami Hind (JIH) on Saturday launched an association of the management bodies of Muslim educational institutes.

The new Federation of Muslim Educational Institutes (India) will be an umbrella body of these institutes.

Jamat-e-Islami Hind is a prominent Muslim body that works for the welfare of the community, especially in the field of education, though it is sometimes criticised for its conservative views.

The idea is to improve the quality of education and make it uniform to match the modern day needs. Besides, there are a lot of government schemes for the welfare of minorities that the managing bodies usually are unaware of, JIH spokesperson Mujtaba Farooq told IANS.

The federation will also provide training to teachers serving in madrasas and schools to equip them with modern education, he said.

About 2,000 NGOs running schools and colleges in various states have already registered as members. However, among the leading madrasas, only Jamiatul Falah in Azamgarh has come on board. "Niyaz Farooqi and Abdul Hameed Nomani from Jamiat Ulema and someone from Nadwa were supposed to come. They did not turn up, but the federation has their blessings, said a JIH source.

"Modernisation of madrasas is a part of this programme not its only aim, he added. Prominent

Page 25 of 33

Muslim leaders, including former parliamentarian Syed Shahabuddin, retired bureaucrat and chancellor of Jamia Hamdard University Syed Hamid and Justice Sohail Siddiqui, took part in the proceedings.

Page 26 of 33

CASE LAWS
ARTICLE 30 (1) It is absolutely Prima Facie in nature as it is not made subject to any reasonable restrictions. This means that all religious minorities, linguistic or religious, have by article 30 (1) right to establish and administer educational institutions of their choice and any law or executive direction which seeks to infringe the substance of that right under article 30 (1) would be void. The above provision however does not prove that the state cannot impose any regulations on the minority institutions. Article 30(2) debars the state from discriminating against minority institutions in the matter of giving grants. But the question is: can the government impose regulations and conditions on the minority institutions for giving them aid or according recognition to them? In the Frank Anthony1 case, the court explained the position thus; The extent of the right under Article 30 (1) is to be determined. Not with reference to any concept of state necessity and general social interest the educational institutions themselves, that is, with reference to the goal of making the institutions effective vehicles of education for the minority community or the other persons who resort to them. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments of imparting the education cannot be considered to impinge upon the rights guaranteed under Art.30 (1) of the constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, without of course nullifying any part of the right of the management in substantial measure. By its interpretative process over the years, the supreme court has given a wide sweep to the protection conferred on the minority institutions under Art. 30(1) as well as permitted some regulation thereof by the concerned government in the interest of the well being of the institution concerned.

Frank Anthony Public School Employees Association v. the Union of India AIR 1987 SC 311 : (1986) 4 SCC 707

Page 27 of 33

From the point of view of regulation, minority educational institutions can be placed into two categories, viz. (1) Institutions receiving aid from state; and (2) Institutions not getting aid from the state each category being further sub divided according to the nature of the educational institution, namely schools, undergraduate colleges, post graduate colleges and professional colleges.2

CAN A STATE DENY RECOGNITION TO A MINORITY INSTITUTION ON THE GROUND THAT THE STATE ALREADY HAS MORE INSTITUTIONS THAN REQUIRED The State of Karnataka denied recognition to a minority teachers training college on this basis. The High Court held the denial of recognition not valid. Without specifically deciding whether or not the state can have such policy, the court concluded that state had no such firm policy as the matter of fact as it had given permission to another similar institution which applied later than the institution in question.3

In Managing Board, M.T.M. v. State of Bihar4, the Supreme of Court quashed an order of the Bihar Government refusing the recognition to a minority teachers training college. The inspection committee had inspected the college and recommended the recognition while the State Government still maintained that the institution did not fulfill all the requisite conditions. The court thus came to the conclusion that the governments refusal was based on purely illusory grounds which do not exist, that it was a colorable exercise of its jurisdiction and, thus, the order was in violation of Art.30 (1).

St. John Inter College v. Girdhari Singh AIR 2001 SC 1891 : (2001) 4 SCC 296 Socio Literati Advancement Society, Bangalore v. State of Karnataka AIR 1979 KANT 217 4 AIR 1984 SC 1757 : (1984) 4 SCC 500

Page 28 of 33

CONDITIONS FOR GRANTS/RECOGNITION

Regulatory measures are important to maintain the educational character and content of the minority educational institutions.5 Such conditions cannot be regarded as violative of the Art. 30 (1) and should, therefore, be followed by all educational recognitions. The conditions should however satisfy a dual test: (a) These conditions should be reasonable; (b) These are regulatory of the educational character of the institution and are conducive to making it an effective vehicle of education for the minority community or other persons who resort to it. Art. 30 (1) prima facie confers an unqualified right on the minorities to administer the institutions established by them. But, in practice, such a right cannot be absolute, a right to administer cannot be a right to maladminister. In the Re Kerala Education Bill6: The right to administer cannot abviously include the right to maladminister. The minority surely cannot ask for the aid or recognition for an educational institution run by them in unhealthy surroundings. Without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the state to insist that in order to grant aid the state may prescribe reasonable regulations to ensure the excellence of the institutions to be aidedreasonable regulations may certainly be imposed by the state as a condition for aid or even for recognition.

5 6

Ahmedabad St. Xaviers College v. State of Gujarat AIR 1974 SC 1389 : (1974) 1 SCC 717 In Re Kerala Education Bill AIR 198 SC 956 : 1959 SCR 995

Page 29 of 33

COMPOSITION OF MANAGING BODIES The Gujarat University Act provided that the governing body of every college must include among its members a representative of the university nominated by the Vice-chancellor, representatives of teaching and non teaching staff and of the college students. The Statutes made by a university required that the an affiliated college should have a regularly constituted governing body consisting of not more than 20 persons approved by the senate including among others, two representatives of the university and the Principal of the college as an ex officio member. This was held by the Supreme Court because it changed the existing composition of the managing committee of the D.A.V Colleges run by the Arya Samaj and thus affected the right of the minority under Art.30 to administer its educational institution according to its choice.7 On a parity of reasoning , it would be unconstitutionalfor an affiliating University or government to supersede the managing committee of a minority institution and appoint an ad-hoc committee instead.8

77 8

D.A.V. college, Jullunder v. State of Punjab AIR 1971 SC 1737 at 1749 : (1971) 2 SCC 417 Arya Pratinidhi Sabha v. State of Bihar AIR 1958 Pat 359 ; M.M. Ali Khan v. Magadh University AIR 1974 Pat 341

Page 30 of 33

APPOINTMENT OF TEACHERS The Supreme Court has upheld the right of the management of a minority institution to appoint the headmaster of its choice.9 The court has insisted that the right to administer the school would get very diminished if the management does not have wide freedom to choose the personnel for such a post. The Court has observed in this connection: Thus the managements right to choose a qualified person as the headmaster of the school is well insulated by the protective cover of Art. 30 (1) of the constitution and it cannot be chiseled out through any legislative act or executive rule except for fixing up the qualification and conditions of the service for the post. Any such statutory or executive fiat would be violative of the fundamental rights enshrined in the aforesaid Art. and would hence be void.

Board of Secondary Education & teachers Training v. Jt. Director of public Instruction (1998) 8 SCC 555

Page 31 of 33

CONCLUSION The conclusion to which I have come to after performing this research is that the Minority Educational Institution have been given special recognition by the government and they are also being constantly governed by National Commission of Minority Educational Institutions and all their pays and salaries related issues or their recognition or termination related issues are very well dealt by them so the Hypothesis which I had formed about the minority educational institutions that they are governed by the same rules and regulations as that of the normal schools was proved drastically wrong.

Page 32 of 33

REFERENCES y y y y y y WIKIPEDIA.COM LEGALSERVICESINDIA.COM VAKILNO1.COM MANUPATRA.COM INDIANKANOON.COM THEINDIANEXPRESS.COM

Page 33 of 33