The recent decision of the Allahabad High court effectively
holding that the Aligarh Muslim University
cannot claim minority status compounds the confusion created by the Supreme
Court over the last 50 years in matters pertaining to rights of minority
educational institutions.
But before we look at the Allahabad judgement and some of the
other decisions of the Supreme Court it is necessary to contextualise the rights
of minorities.
The yardstick for measuring the intrinsic strength of a secular
democracy is how secure the minorities feel within the nation. No doubt,
democracy is ultimately supposed to be the rule of the majority but at the same
time there have to be inbuilt safeguards to ensure that a rule of the majority
does not become tyranny by the majority. It is in this context that the rights
of minorities acquire crucial significance.
Justice Jackson of the US Supreme Court rightly pointed out in
the West Virginia State Board of Education case: "If there is any fixed star in
our constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion or other
matters of opinion or force citizens to confess by word or act their faith
therein".
Democracy is the rule of equality where all persons are treated
as equal whether they belong to the majority or minority. It has been argued
that the fact that the minorities are being treated as equals, and that too
through a fundamental right, should satisfy and protect them. Where then is the
need for special safeguards or separate fundamental rights? But as observed by
the Supreme Court in the case of St Stephen’s College vs University of Delhi
(1992): "The minorities do not stand to gain much from the General Bill of
Rights or Fundamental Rights which are available only to individuals. The
minorities require positive safeguards to preserve their minority interests
which are also termed as group rights".
Similarly, in the St Xavier’s College case judgement of 1974,
Justice Khanna observed: "The idea of giving some special rights to the
minorities is not to have a kind of privileged or pampered section of the
population but to give the minorities a sense of security and a feeling of
confidence".
It has been internationally recognised that minorities need not
just equal treatment but also special protection. It has been assumed, and
rightly so, that the majority can look after and take care of itself in respect
of protection of language, religion or culture.
In all functioning secular democracies, individuals and groups
have the right to practice and propagate religion as a basic right. A secular
state necessarily means the absence of any state religion. But this is a very
restrictive definition. Secularism also means that the state shall protect those
who do not follow the majority religion. It is thus crucial that sufficient
protective measures exist for the religious minority groups to protect their
religion.
There is a major difference between the Backward Castes and
linguistic and religious minorities. The only way in which the Backward Castes
can get out of their oppression in the long run is through a casteless society
i.e. if they lose their caste status. The Backward Castes will benefit and in
the ultimate analysis be rid of their oppression if they lose their caste
identity and in that sense merge with the so-called mainstream. For the
linguistic and religious minorities the issue is different. They want to retain
their identity as separate linguistic or religious groups. As very rightly said,
Jews do not want to be Catholics, Gujaratis do not want to be Maharashtrians and
Muslims do not want to be Hindus. Looked at from this point of view, the stress
laid time and again by the Supreme Court that all educational institutions
should be melting pots for all communities is wide off the mark.
The Constituent Assembly recognised that religious and
linguistic minorities have to be protected by allowing them to establish and
administer educational institutions for conserving their script, language or
religion and giving them adequate facilities so that they are not hampered in
this. It is in this context that Articles 29 and 30 of the Constitution have to
be viewed.
"29(1) Any section of the citizens residing in the territory of
India or any part thereof having a distinct language, script or culture of its
own shall have the right to conserve the same.
"30(1) All minorities, whether based on religion or language,
shall have the right to establish and administer educational institutions of
their choice.
"(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational institution on the ground
that it was under the management of minority, whether based on religion or
language."
It is very clear from Articles 29 and 30 and also from the
discussion above that the purpose of granting protection to minority educational
institutions is to ensure that the minorities, religious or linguistic, are able
to protect their script, language, religion or culture. Thus, the test of
whether an educational institution is actually a minority institution or not
should be whether it in fact protects or promotes a minority script, religion,
language or culture. But over the last 50 years the Supreme Court has
consistently negated this argument.
The Supreme Court has throughout held that the only test to
determine the minority status of an educational institution is whether it is
established and administered by a minority and not whether it is running for the
benefit of the minority. To put it simply, if five Maharashtrians get together
and start a Marathi medium school in Mumbai it will not be treated as a minority
institution. But if five Gujaratis get together and start a Marathi medium
school in Mumbai it will be treated as a minority school. For example, in Mumbai
there are colleges run by Sindhis which do not give preference to Sindhi
students, do not necessarily prefer Sindhi teachers, do not offer Sindhi as even
an optional subject but are granted minority status.
Because of this skewed interpretation by the Supreme Court, the
only reason why most of the institutions claim minority status is to get certain
benefits for the management and not for the script, language or culture of the
minority that they represent. There are, broadly, three benefits available to a
minority institution that are not available to other institutions:
(a) Minority educational institutions do not have to maintain
reservation in employment or admissions for SCs, STs and OBCs as required to be
done by other educational institutions.
(b) In terms of control over employees, minority educational
institutions have much greater powers than other institutions. For instance, in
the selection of teachers and principals the minority educational institution
can have a selection committee which does not include the university
representative. Similarly, while in ordinary schools the headmasters normally
have to be appointed on the basis of seniority, minority managements can select
a headmaster of their choice.
(c) In matters of admission of students, minority educational
institutions can have reservation of up to 50 per cent for students of their
community.
Unfortunately, it has been observed that most of the managements
seek minority status only to avoid reservation for Backward Castes and for
victimising employees.
It is in this context that Aligarh Muslim University seems to
have been ‘done in’ by a curious interpretation of the Constitution first by the
Supreme Court and now by the Allahabad High Court.
The case of Azeez Basha vs Union of India (AIR 1968 SC
663) was decided by a constitutional bench of the Supreme Court in 1967. The
question was whether certain amendments to the Aligarh Muslim University Act,
1920 affected the Muslim minority’s rights under Article 30(1). The court held
that though the university came into existence because of the demands from the
Muslim minority community and due to their efforts, it was in fact ‘established’
by a central legislation and hence could not be said to be ‘established’ by a
minority.
This is and was an amazing decision. Having accepted and held
that it was as a result of the efforts and aspirations of Muslims that the
university was established, for the Supreme Court to turn around and hold that
it was not a minority institution merely because it was formally brought into
existence by an enactment is to make a mockery of minority rights. As the
constitutional expert HM Seervai rightly pointed out, any university has two
distinguishing features: firstly, it is incorporated by a sovereign and
secondly, it is empowered to give its own degrees which are recognised by the
sovereign. The only manner in which a community could establish such a
university was by invoking the exercise of the sovereign power, which might take
the form of either a Charter or an Act of the legislature. This, the Muslim
community that had set up the Mohammedan Anglo-Oriental (MAO) College, did. They
brought the university into existence in the only manner in which such a
university could have been brought into existence, namely, by invoking the
exercise by the sovereign authority of the legislative power.
It was the Muslim community that had provided the lands, money
and other necessaries for founding the university and in that sense ‘founded’
the university. By the logic of the Supreme Court, though a university is an
educational institution it can never ever get the character of a minority
educational institution.
The same error has been committed by the Allahabad High Court in
its October 2005 judgement in the case of Dr. Naresh Agarwal vs Union of
India where certain amendments to the Aligarh Muslim University Act, 1920
were challenged. After the decision in the case of Azeez Basha, the Act was
amended to incorporate specific provisions in the Act which categorically
pointed to the fact that the university was established by Muslims. A further
amendment stated that one of the objects for establishing the university was to
‘promote especially the educational and cultural advancement of the Muslims in
India’. On the basis of this, a reservation for Muslim students in admissions
was provided. This was challenged by some non-Muslim candidates.
It was argued that in view of the amendments of 1981 the basis
of the Supreme Court decision in the Azeez Basha case had been removed and so
Aligarh Muslim University could at least now be termed a minority educational
institution. However, following the logic of the Supreme Court, the Allahabad
High Court rejected this contention and effectively held that no university
could ever be a minority institution.
In keeping with the past record of the courts, the decision is
not at all surprising. While on the one hand, genuine minority institutions do
not get adequate protection under Article 30, on the other hand fake minority
institutions, which have been mushrooming only for the managements to derive
personal benefits without having any impact on community rights, enjoy these
rights and privileges.
What is needed is a comprehensive overhaul of the Article 30
jurisprudence developed by the Supreme Court over the last 50 years, which in my
opinion has been totally wrong and not in consonance with the spirit of the
Constitution. Minority status needs to be given only to those educational
institutions which promote or protect the script, language, culture or religion
of a minority grouping and the protection given to these institutions needs to
be only to the extent that such protection furthers these goals. We cannot allow
either the Backward Castes or employees to be sacrificed on the altar of such
protection.