Valid under law or divisive condition? The legality of ‘Hindus only’ ad in TN

An advertisement inviting ‘only Hindus’ to apply for the post of assistant professors at an upcoming college in Tamil Nadu had stirred up a storm. But is it a valid condition? TNM finds out.
Tamil Nadu's HR&CE Minister PK Sekar Babu
Tamil Nadu's HR&CE Minister PK Sekar Babu

A recent advertisement released in a newspaper in Tamil Nadu invited applications for jobs for the posts of assistant professors for a new college. It had one condition, which was printed in bold — “only Hindus can apply.” The advertisement was issued by the Hindu Religious and Charitable Endowments (HR&CE) Department in Tamil Nadu for the recruitment of assistant professors in the BBA, BSc, Tamil, English, BCom, Mathematics departments as well as assistant professors for the post of librarian and physical directors at Arulmigu Kapaleeswarar Arts and Science College, located in Kolathur in Chennai. The walk-in interviews for these posts were held on October 18. However, the advertisement, which was released on October 13, had triggered a storm, with teachers’ associations alleging that this condition was discriminatory.

On October 14, the Tamil Nadu Congress Committee’s Minority Department sent a letter to the HR&CE Department (headed by Minister PK Sekar Babu), the college officials as well as the Madras High Court, calling this a divisive condition. The letter said that if non-Hindu religious candidates are not permitted, it is a violation of Article 16 of the Indian Constitution. According to Article 16, “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to and office under the State,” and “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office.”

Speaking to news agency IANS, K Pandyan, the former president of Association of University teachers, said, "HR&CE department has 36 schools, five arts, and science colleges and a polytechnic college and this is the first time that such an advertisement has appeared stating that posts are reserved for Hindus only."

However, officials from the government have defended this condition, saying such a condition is valid under Section 10 of the Tamil Nadu Hindu Religious And Charitable Endowments Act. It states, “The Commissioner, the Additional Commissioner, every Joint, Deputy or Assistant Commissioner and every other officer or servant appointed to carry out the purpose of this Act, by whomsoever appointed, shall be a person professing the Hindu Religion and shall cease to hold office as such when he ceases to profess that religion.”

The defence of this condition is also that Article 16(5) of the Constitution provides “an exemption for appointments for an office in connection with the affairs of any religion.”

But is this law applicable to institutions formed by the HR&CE Department or it just applies to religious places governed by the HR&CE Act? TNM spoke to two legal experts, both of whom say that this is an absurd condition and cannot be legal. They explain why.   

The new college and the laws that govern

The Arulmigu Kapaleeswarar Arts and Science College is a new educational institution being set up by the HR&CE Department of the Tamil Nadu government. The institution has been set up under Section 3 of the Tamil Nadu Private Colleges (Regulation) Act,1976, explains Justice K Chandru, a retired judge of the Madras High Court. Under this provision, the HR&CE Board sought permission from the Higher Education Department to start a private college, which was granted earlier this month, on October 6, 2021.

This means, this new institution becomes an educational institution, and appointments to this institution will be made under the Tamil Nadu Private Colleges (Regulation) Rules, 1976. An official from the HR&CE Department in Tamil Nadu confirmed to TNM that the institution is an educational institution, which is being maintained by the HR&CE Department. It is not located on the temple premises, and only the funds are maintained by the department.

“That the colleges run by the HR&CE Board are governed by Tamil Nadu Private Colleges Act was decided by Madras High Court in several cases. One such case is A Karunanidhi vs The Secretary And Correspondent, Poompuhar College, Melaiyur, 1995 (1) MLJ 25,” explains Justice Chandru. “The post of lecturers in a college, which is run under the control of HR&CE Board and is funded by the religious endowments department (not from government), has to be governed only under the Private Colleges Act,” he explains.

Advocate Laxmi Narayanan from Tamil Nadu says that therefore, this Section 10 of the HR&CE Act will not apply to educational institutions, as they are not carrying out religious functions, even though it has been set up by the HR&CE Department.

“The purpose of HR&CE Act is to govern religious and charitable institutions, as well as to make sure religious institutions are governed properly and are not mismanaged. It is not the jurisdiction of the temple to start a college — there is no bar, but there is no necessity that they should. So if they do start a college, they must come under the secular scheme, which the government has evolved,” the lawyer explains.

He added that since the new institution will not be carrying out any religious activities and will be imparting education, the question of appointments from a specific religion does not arise. This educational institution will not be the same as other religious institutions like a madrassa or a Veda Pathashala, where education also includes religious teachings, for which then imposing a condition seeking ‘only Hindus’ will be valid.

“If it is a function that inherently involves religion, like conducting a puja or praying, or is a post of that of a manager inside a temple, it does not make sense to appoint a person who doesn't believe in Hinduism for employment there — you can't have a Christian or a Muslim as the manager of a temple, because they will not know the customs. But if it is an institution that is going to provide secular education, you have to see the best possible person available for the job. Running an educational institution is not a religious function of the temple, it is monetising the funds available to it and it is also doing a social function,” advocate Laxmi Narayanan explains. The idea, in this case, should only be to give the best education to the children.

He also points out that there are similar institutions in other states — for example, the JSS Lingayat institution in Karnataka, which does not impose conditions that only Lingayats can be appointed as employees. "The MSS Waqf Board College in Madurai has no such condition, and employs non-Hindus as well,” adds Laxmi Narayanan.

Moreover, Justice Chandru says that only when religious minorities are running educational institutions, they have the power under Article 30(1) of the Constitution and they have the right to administer the institution of their choice, which includes the appointment of staff and admission of students. “In those cases, they can appoint the members of their own religion alone to the exclusion of others. Such a right does not exist to a majority of religious institutions,” says Justice Chandru.

‘Just politics’

As per the Constitution, under Article 16(1), any preference based on religion is prohibited. The HR&CE Department could have possibly cited Article 16(5) for its condition, under which, there is an exemption granted for appointments for an office in connection with the affairs of any religion alone.

“This is a storm in a teacup; unnecessarily creating an issue when none should exist. These are techniques to wedge division between communities. The advertisement is wrong and makes an absurd argument,” says advocate Narayanan.

Justice Chandru says, “The Minister and the Department are playing hide and seek and are giving lame excuses. Their reference to Section 10 of the HR&CE Act has no relevance because neither the college nor the teachers perform anything connected with affairs of religion.”

A writ petition in court

The row over the advertisement is not going to simmer down any time soon, as a PIL has been filed by a Muslim candidate in the Madras High Court against this condition that only Hindus can apply to the post of assistant professors in the Arulmigu Kapaleeswarar Arts and Science College. The matter is likely to be listed before the High Court in the coming days.

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