2. Right of Minorities to Establish and Administer Educational Institutions

Article 30 grants the following rights to minorities, whether religious or linguistic:

(a) All minorities shall have the right to establish and administer educational institutions of their choice.

(b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31).

(c) In granting aid, the State shall not discriminate against any educational institution managed by a minority.

Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term 'minority’ has not been defined anywhere in the Constitution.

The right under Article 30 also includes the right of a minority to impart education to its children in its own language.

Minority educational institutions are of three types:

(a) institutions that seek recognition as well as aid from the State;

(b) institutions that seek only recognition from the State and not aid; and

(c) institutions that neither seek recognition nor aid from the State.

The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on. The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.

In a judgement delivered in the Secretary of Malankara Syrian Catholic College case14a (2007), the Supreme Court has summarized the general principles relating to establishment and administration of minority educational institutions in the following way :

1. The right of minorities to establish and administer educational institutions of their choice comprises the following rights :

(i) To choose its governing body in whom the founders of institution have faith and confidence to conduct and manage affairs of the institution;

(ii) To appoint teaching staff (teachers/ lecturers and h masters/princi-pals) as also non-teaching staff; and to take ac if there is dereliction of duty on the part of any of its employee

(iii) To admit eligible students of their choice and to set u reasonable fee structure; and

(iv) To use its properties and assets for the benefit of the institution

2. The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation,

taxation etc., applicable to all, will equally apply to minority institutions also.

3. The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).

4. Subject to the eligibility conditions/ qualifications prescribed by

the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

5. Extention of aid by the State, does not alter the nature and character of the minority educational institutions. The conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).

A mere declaration of fundamental rights in the Constitution is meaningless, useless and worthless without providing an effective machinery for their enforcement, if and when they are violated. Hence, Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the right to get the Fundamental Rights protected is in itself a fundamental right. This makes the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the most important article of the Constitution-'an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution. It contains the following four provisions:

(a) The right to move the Supreme Court by appropriate

proceedings for the enforcement of the Fundamental Rights is guaranteed.

(b) The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto.

(c) Parliament can empower any other court to issue directions, orders and writs of all kinds. However, this can be done without prejudice to the above powers conferred on the Supreme Court. Any other court here does not include high courts because Article 226 has already conferred these powers on the high courts.

(d) The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution. Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).

It is thus clear that the Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens. It has been vested with the 'original’ and 'wide’ powers for that purpose. Original, because an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. Wide, because its power is not restricted to issuing of orders or directions but also writs of all kinds.

The purpose of Article 32 is to provide a guaranteed, effective, expeditious, inexpensive and summary remedy for the protection of the fundamental rights. Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on. The violation of a fundamental right is the sine qua non for the exercise of the right conferred by Article 32. In other words, the Supreme Court, under Article 32, cannot determine a question that does not involve Fundamental Rights. Article 32 cannot be invoked simply to determine the constitutionality of an executive order or a legislation unless it directly infringes any of the fundamental rights.

In case of the enforcement of Fundamental Rights, the jurisdiction

of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. It vests original powers in the high court to issue directions, orders and writs of all kinds for the enforcement of the Fundamental Rights. It means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.

Since the right guaranteed by Article 32 (ie, the right to move the Supreme Court where a fundamental right is infringed) is in itself a fundamental right, the availability of alternate remedy is no bar to relief under Article 32. However, the Supreme Court has ruled that where relief through high court is available under Article 226, the aggrieved party should first move the high court.

The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Further, the Parliament (under Article 32) can empower any other court to issue these writs. Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court. Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs. Article 226 now empowers all the high courts to issue the writs.

These writs are borrowed from English law where they are known as 'prerogative writs’. They are so called in England as they were issued in the exercise of the prerogative of the King who was, and is still, described as the 'fountain of justice’. Later, the high court started issuing these writs as extraordinary remedies to uphold the rights and liberties of the British people.

The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:

1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. The expression 'for any other purpose’ refers to the enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.

2. The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.15 Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court.

3. A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32 does not merely confer power on the

Supreme Court as Article 226 does on a high court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

Now, we will proceed to understand the meaning and scope of different kinds of writs mentioned in Articles 32 and 226 of the Constitution: