Can A School Purchased By Minority Community From A Person Of Another Community Claim Article 30 Rights? Supreme Court To Consider

The Supreme Court has issued notice on a special leave petition which raises the issue whether a school purchased by a minority community from a person belonging to another community is entitled to claim minority rights under Article 30 of the Constitution of India.

A division bench comprising Justices S Abdul Nazeer and Krishna Murari, while issuing notice, also stayed the operation of a judgment of the Kerala High Court, which held that a school purchased by a minority community cannot be held to be an an institution "established" by a minority community so as to claim the rights under Article 30.

The bench was considering the special leave petition filed against the High Court judgment by Jesuit Educational and Charitable Society of Wayanad.  The school in question was established by one Kunhikrishnan Nair in 1951. In 1990, the Jesuit Society purchased the ownership rights of the school from Kunhikrishnan Nair, and the transfer of the school was effected to it with the approval of the authorities under the Kerala Education Rules. In 1997, the School was given minority status Higher Education Department of the State. Later, in 2009, the National Commission for Minority Educational Institutions also accorded minority status to the school.

In 2016, a writ petition was filed by one CV Francis raising a claim to the post of Headmaster as the senior most teacher of the school. He challenged the appointment of another person, who belonged to the religious congregation, as the Headmaster. A single bench of the High Court held that as the school was a minority institution, the management was entitled to appoint any qualified person belonging to the religious community as the Headmaster and dismissed the writ petition.

In intra-court appeal, the division bench set aside the single bench judgment by holding that the school was not entitled to minority protection, as it was not established by the community and was purchased from a person belonging to another community. The division bench therefore directed that the claim of CV Francis should be considered for the post of Headmaster.

This finding is challenged in the Supreme Court as a "narrow interpretation" which goes against the spirit and intention of Article 30.

"The Division Bench of the High Court failed to give due regard to the object and purpose of Article 30 of the Constitution while interpreting the expression "establish" referred to in the said Article. The constituent assembly debates disclose that the object of Article 30 is to provide the minority community a sense of security and a feeling of confidence. It is submitted that merely because an institution was originally owned by a non minority individual, it will not take the institution out of the ambit of article 30 of the Constitution. The very physical construction of a school building by the minority community itself at the inception is not mandatory for obtaining the benefits of Article 30 (1) of the Constitution", the petition filed through Advocate Romy Chacko reads.

It is argued that the religious status of the transferor of an educational institution does not affect the minority character of the institution or the status of the transferee of the property in any manner. The Division Bench of the High Court failed to appreciate that an educational institution purchased by minority community and dedicated for the cause of minority would also fall within the ambit of the expression "establish" referred to in Article 30. The petitioner urges that the High Court ought to have taken a "purposive interpretation" instead of approaching the constitutional guarantee with a literal sense.

The plea also states that there are conflicting judgments given by different High Courts on this point and hence an authoritative pronouncement by the Supreme Court is necessary.

Case Title : Jesuit Educational and Charitable Society of Wayanad and others vs CV Francis and others

Click here to read/download the SC order

Click here to read/download the High Court judgment