“Democracy is not the law of the majority, but the protection of the minority.”
In any democratic society, the constitutional impulse for giving some special rights in minorities stems not from the desire to create a ‘pampered’ or ‘appeased’ section of the population but to give to them a sense of security and confidence. The issue of minorities in a plural and diverse polity like India’s evolves from the basic reality of tension and dialectics between the unit and the whole or the individual and society. Today, minority institutions are coming under threat with the current regime’s changing long-standing official policy on, for example, the minority character of Aligarh Muslim University (AMU) and Jamia Millia Islamia. The erstwhile UPA government had gone in appeal to the supreme court against the Allahabad high court decision in Naresh Agarwal(2005) in which it denied AMU’s minority character and struck down a few provisions of the1981 amendment to the Aligarh Muslim University Act,1920.
To move ahead it is essential here to first analyse constitutional provisions which dealt with the regulation of minority institutions in India. Constitutional Rights on Education Provided to Minorities: The Constitution of India provides certain fundamental rights (Articles 15-17, 25 to 30) and directive principles (Articles 330-339 and 350) for the benefit of minorities in India. However, in this paper, only Article 30 will be deliberated upon. For easy reference, the Article is stated below:
Right of minorities to establish and administer educational institutions:
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause
(1), the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict orabrogate the right guaranteed under that clause.]
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Concept of Minority
‘Minority’ as a concept has not been adequately defined in the Indian Constitution. Although mentioning the cultural attributes of religion and language, the Constitution does not provide details on the geographical and numerical specification of the concept. Even the specifics of language and religion are not mentioned. As early as 1958, in ‘In Re the Kerala Education Bill, 1957’ (AIR 1958 SC 956) the Supreme Court suggested the technique of arithmetical tabulation of less than 50 per cent of the population for identifying a minority. This population was to be determined in accordance with the applicability of the law in question. If an Act is applicable nationwide then the minority group would be decided on the national figures and in the case of the Act being applicable in a state, the minority group would be decided on the state figures. However, the recent case of T M A Pai Foundation and Ors vs State of Karnataka and Ors (October 2002; hereinafter referred as pai case ) has specified the geographical entity of state for consideration of the status of minority for Article 30.
To quote from the judgment (Judgments Today, 2002(9) SC 2) Since the reorganisation of the states in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the state and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered state wise. One fails to understand how the organisation of states on linguistic basis provides a base for consideration of the states as the basic unit for arithmetical calculation for determining religious minorities. Further, it is important to mention that the condition of having less than 50 per cent of the population in a state, distinguishable on religious or linguistic terms, does not entitle one to the rights automatically. Succinctly, it is left to the minority to establish its minority status in order to avail the benefits of Article 30.
The task is difficult especially because the concepts of ‘religion’ and ‘language’ have not been adequately defined in the article or the constituent assembly debates. Does the concept of language refer to the languages having adequately developed grammar and script or only script is sufficient to claim the status or is spoken language a condition enough to acquire the status of minority?
As far as language is concerned, the case of D A V College, Jhallandhar vs State of Punjab (AIR 1971 SC 1737) is considered important. In this case, the Court observed, A linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that that language should also have a distinct script for those who speak it.
Article 30(1) gives linguistic and religious minorities a fundamental right to establish and administer educational institutions of their choice. In the case of St Stephan’s College (AIR 1992 SC 1630) it was stated, …the words “establish” and “administer” used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution is thus a condition precedent for claiming the right to administer the institution. One gets surprised at this condition. Why does a minority have to establish an institution in order to administer it? Transfer of management in private educational institutions is not a rare phenomenon in India. According to Desai, (1996:79)
The logic behind this is rather incomprehensible. The only reason given for this interpretation is that the word ‘and’ and not the word ‘or’ is used between the words ‘establish’ and ‘administer’.
In State of Kerala vs Mother Provincial (AIR 1970 SC 2082), Supreme Court made the following interpretation:
“The first right is the initial right to establish institutions of the minority’s choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds.”
Education of Their Choice
Preservation of culture, as such, is not a necessary condition either for acquiring the status of a minority or for claiming rights under Article 30. In Re, the Kerala Education Bill 1957 (AIR 1958 SC 959) chief justice SR Das stated:
“The key to the understanding of the true meaning and implication of the article under consideration are the words “of their own choice”. It is said that the dominant word is “choice” and the content of that article is as wide as the choice of the particular minority community may make it.” This view is confirmed in the case of St Xavier’s College vs State of Gujarat (AIR 1974 SC 1389) by a bench of nine court judges. However, in the All Saint’s High School (AIR 1980 SC 1043), the court laid down broad principles for determining syllabus. It states where a minority institution is affiliated to a university the fact that it is enjoined to adopt the courses of study or the syllabi or the nature of books prescribed and the holding of examination to test the ability of the students of the institution concerned does not violate the freedom contained in Article 30 of the Constitution.
Scope for Government Control
Administration of an institution requires constant interaction among the management of the institution and the government. As the interests of the two are different, this generates many conflicting situations. Some of the contested issues are mentioned in the Pai case (Judgments Today, 2002(9) SC 15), where …it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of… institutions. In particular, the objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.
Relation between Articles 30 and 29
In general, courts in India put Articles 29(2) and 30 together. This affects the implementation of the provisions of Article 30. For easy reference Article 29 is quoted below:
Article 29 – Protection of interests of minorities:
(1) Any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.
A careful reading reveals an intrinsic difference between the two Articles. Whereas Article 30 provides exclusive right to establish and administer educational institutions to the linguistic and religious minorities, Article 29(2) provides indiscriminate right to admission in government-sponsored and administered educational institutions to the citizens of India.
In the case of St. Xavier’s College vs State of Gujarat (AIR 1974 SC 1389), a bench of nine judges was called to determine the interrelationship between Articles 29 and 30. All the nine judges were unanimous in their opinion that Articles 29(1) and 30(1) deal with distinct matters and may be considered supplementing each other so far as certain cultural rights of minorities are concerned. However, the relation between clause (1) of Article 30 and clause (2) of Article 29 is paradoxical generating confusions like; can minority education institutions deny admission to any student on the basis of religion or language? Whether in admission to minority education institutions, preferences can be given to minority students, overruling the criteria of merit? In the case of Ashu Gupta (AIR 1987 P& H 227), the court held that unaided minority institutions have complete freedom to select their students. It held that all minority institutions not receiving aid from the government ‘are wholly out of the ambit of Article 29(2)’. In the case of Sidhrajbhai vs State of Gujarat (AIR 1963 SC 540), the court held that in government-aided minority institutions, the government can neither nominate students nor reserve seats for backward classes. In the case of Sheetansu Srivastava (AIR 1989 ALL 117) the court held that neither the government could direct a minority institution to admit particular students nor a minority institution could deny admission to students on the basis of their not belonging to the minority community.
Present scenario or challenges
The communalised debate over minority rights in India ignores the fact that the constitution talks of two kinds of minorities- religious and linguistic. Since minorities are defined at the state level, Hindus are a religious minority in Kashmir, Punjab and some north-east states but a section of them – depending on their mother tongue can enjoy the status of a linguistic minority in all other states. There are thus hundreds of minority educational institutions India that cater to the rights of citizens who happen to be Hindus. But the propaganda of rightist forces that the right to minority educational institutions is available only to religious minorities and not to Hindus is really mischievous and far from the truth. The fundamental right of minorities to set up their own educational institutions benefits Indians of all religions depending on which state they happen to live in.
While it is true that central government has not so far notified any linguistic minority as a minority under the NCMEI, such a notification is not needed as linguistic minorities are to be defined at the state level. The minority status of a community in any given situations is a matter of fact and does not depend on recognition by law. By establishing educational institutions of secular education, minorities assist the government in implementing the citizen’s right to education. Moreover, in these minority institutions, a large number of non-minority students also receive a modern and liberal education. The establishment and administration of minority educational institutions is, therefore, a matter of national interest. If we don’t want Muslims to go to madrasas, we must facilitate the establishment of more and more minority institutions which will provide modern education.
The need for a statutory mechanism arose as a number of states were – and, in fact, still are – creating hurdles in the establishment of minority educational institutions. Minority institutions also faced a number of obstructions in their affiliation with universities and recognition of their minority character by state governments. In one instance in Uttar Pradesh, minority status was refused in spite of the decision of the high court. In fact, the Allahabad high court has even held – in Committee of Management Anjuman (2007) – that Muslims are not a minority in UP. Justice S.C. Srivastava, who authored this judgment, was subsequently appointed Lokayukta by the BJP government in Chhattisgarh. In certain cases, state governments have denied minority status to educational institutions on the ground that the aims and objectives of the societies/trusts setting them up did not clearly specify that they were meant to serve the interests of the minority community. The irony is that in these states when members of the minority community apply for registration of their society, the Registrar of Societies typically insists on changing the memorandum of association to exclude any reference to the minority. This is the strategy through which many state governments have successfully prevented the establishment of minority educational institutions. If the state is ruled by the BJP, the situation worsens in no time and the establishment, affiliation and recognition of minority educational institutions become a herculean task. A number of minority institutions similarly face enormous problems in getting approval from the Income Tax department under section 80(g) which provides for exemption of donations from payment of income tax. Many tax officers have ruled that religious minority institutions are not eligible for such exemption. This has resulted in preventing the institution concerned from raising the requisite resources. In one of its most regressive and legally flawed judgments in respect of Aligarh Muslim University case (Azeez Basha, 1968), the apex court had reached the conclusion – without any historical basis – that in exchange for the recognition of its degrees, the founders of MAO College had surrendered their minority character in 1920. In St Xaviers (1974), a nine-judge bench categorically observed that fundamental rights can neither be waived nor can any future generation be bound by any such waiver. Thus, Muslims can legitimately assert their right to administer AMU. The apex court’s judgment in 2018 is historic as it has reiterated that no fundamental right – including the rights of minorities – can be waived. For example, no one can waive her right to life. Thus, even in the latest judgment on euthanasia, the Supreme Court did not permit the right to die but allowed only passive euthanasia with a number of safeguards in rare situations. Fundamental rights being natural rights must be possessed by all human beings at all points of time. No person can say ‘I do not want these rights’. and therefore waiver of fundamental rights is not permissible. A religious or linguistic minority in India can choose to establish and run an educational institution on a non-minority basis but it cannot lose its right to change its mind and assert its minority character on a subsequent date. The judgment has implications on the minority character case of Aligarh Muslim University and JMI pending in the Supreme Court.
The above-made discussion unfolds a disappointing picture of the rights promised to the minorities through Article 30 and their implementation. The vague wording of Art.30 has left the doors of courts open to facilitate regular interpretation of the rights and thus leads to chaos and confusion and put minorities at disadvantage to exercise their guaranteed rights. As far as the interpretation of Article 30 by the courts is concerned, one finds three trends. Firstly, the judgments are contextual, hence, many times, are different, reflecting the personal convictions of the judges. This makes interpretation of the Article vague and subject to a constant struggle between the minorities and the state. Secondly, these judgments are more liberal with linguistic minorities than with the religious ones and, thirdly, they reflect a trend towards gradually reducing the scope of the Article, giving space to the governmental regulations and control. An example can be given of conjunctive use of the terms ‘establish’ with ‘administration’. Such an approach, it is needless to state, has deprived many minority communities the benefit of the rights due to them. Yet, another example can be given of the use of concepts like ‘maladministration’ and ‘excellence’. As can be seen in both, St Stephan and the Pai cases, judges are influenced by ‘melting pot’ theory working towards building uniformity in the practices and laws. Putting Articles 29(2) and 30(1) together further reduces benefits promised to the minorities through Article 30. The conjunctive use of the two articles has resulted in quota fixing in the seats for the students from the community in the minority educational institutions.
Lastly, I would suggest that government should shun adamant attitude towards minorities and come up with the proper guidelines fulfilling the test of reasonableness to declare any educational institution as a minority institution.