Difference in interpretation between Religious Establishment Rights & Educational Rights

I want to highlight a strange difference in interpretation, by our executive and judiciary, of the Rights guaranteed under our Constitution for running our temples (religious establishments) and a section of our citizenry running educational institutions.

Common structure between religious establishment rights and educational rights

There is considerable similarity in the way rights related to religious establishments and educational establishments (for minorities) are coded in our constitution.

  • Both the rights are governed by two sets of Articles in the constitution
  • The first right is in the sense of a generic right. This right has an exception encoded.
  • The second right is a specific right to run the particular establishment.

Let us look at the specifics.

I) Rights related to religious establishments

Generic right

The generic right is provided by Article 25. It is as follows

25. (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

By this right, all citizens are free to profess and practice any religion.

Restriction to the generic right

A sub-clause under Article 25 itself imposes some restrictions on the above right.

25. (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

By virtue of this, the State can get involved in any economic or other secular activity even if the practice is religious.

Specific right

Under Article 26, all citizens have the right to establish and maintain religious institutions. For Hindus, this translates to temples and mathas.

26. 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

We can notice from the wording of Article 26(1) that it is very broad and does not impose any restrictions.

Interpretation of the specific right

Over the years, our governments and courts have interpreted the above rights in such a way that even though the specific right (Art 26(1)) does not have any restriction, the restrictions under the generic right (Art 25(2)(a)) have been read along and hence State interference in management of temples and mathas have been held constitutional.

For e.g. in Pannalal Bansilal Pitti & Ors, the Court said

The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right…….

 The administration of religious institution or endowment or specific endowment being a secular activity, it is not an essential part of religion and, therefore, the legislature is competent to enact law.

Due to this line of interpretation, most of the State Governments in India have taken over management of Hindu temples.

II) Rights related to educational establishments

Generic right

The generic right to establish educational institutions is provided by Article 19(1)(g)

19. (1) All citizens shall have the right—

(g) to practise any profession, or to carry on any occupation, trade or business

Under this right, any citizen can open and run a school, college or any other form of educational institution.

Restriction to the generic right

A sub-clause under Article 19 imposes certain restrictions on the above generic right.

19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 2[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business…]

As one can see the State can make laws to impose restrictions on running educational institutions, just like it can for any other establishment.

Specific right (for minorities)

Under Article 30(1), minorities obtain rights to establish and maintain educational institutions.

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

Once again, we notice from the wording of Article 30(1) that it is very broad and does not impose any restrictions.

Interpretation of the specific right

When it comes to interpreting this particular specific right, governments and judiciary, over the years, have taken an opposite stance when compared with rights related to temples. Here, they have held that the specific right (Art 30(1)) will NOT be governed by the restrictions on the generic right (Art 19(6))

For e.g. in the Pramati judgement, we find the following

Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions…

Due to this, various laws such as RTE, fee-restriction-Acts etc are not applicable to minority institutions.

Conclusion

  • On the issue of temples, the restriction on the generic right is held as good enough to be imposed on the specific right.
  • On the issue of minority educational institutions, the restriction on the generic right is held as not having any impact on the specific right.
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s