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The battle for article 30
By Saeed Suhrawardy
|For the minorities of India Article 30 of the Constitution of India has been an article of faith guaranteeing their constitutional position in the country. Article 30 gives the minorities, both religious and linguistic, the right to establish and administer their institutions as the means to preserving, encouraging and propagating that distinctive culture which makes them what they are, members of India's rich plural culture.
The Union Government of National Democratic Alliance led by Bhartiya Janata Party seems determined to revise the stand of UF Government led by Mr. HD Deve Gowda, in relation to the interpretation of the Article 30. The Deve Gowda Government's position, on whether non-minorities could establish educational institutions just like minorities, was one of protective discrimination. The present government feels that the right to establish educational institutions is available to both majority and minority groups under Article 19(1)(g); to every religious denomination and every section f all religious denominations under Article 26.
On whether the admission of procedure can be left entirely to the discretion of institutions, the Gowda Government had said it should be, but the stand of the present NDA Government is that it should be subject to state regulation-indeed the government should frame policies on allocation of free and "payment" seats. As for the ratio of reserved to open seats, the UF government had supported quotas on the ground of religion. But the NDA government has said the reservation claim is not bonafide. It argues strongly for overturning the judgment in the St. Stephen's College's case.
It is surprising that there was near-consensus in the ruling coalition about curbing the rights of minority educational institutions. The stand was considered at the meeting of the cabinet on July 16, but surprisingly there was no objection from the NDA partners, who go about as "champion" of the minorities cause.
Sangh Parivar has carried to the courtroom, its ambition of controlling Christian institutions, their administration, and their policy of admissions. Christian minority institutions have been a "thorn" in the eyes of RSS and its Sangh Parivar. There has been a malicious propaganda against them for a number of years, alleging their foreign connections and their
involvement in so-called 'conversions'.
However, any interpretation of the right of minorities will have a bearing on the minority institutions of Muslims as well. The battle for Article 30 is being fought before a historic Constitution Bench set up by Chief Justice Ahmadi in the last decade of the previous century, but the proceedings started recently. The 11-Judge Constitution Bench of the Supreme Court began on April 2, the process of deciding a long pending matter concerning the rights of minority community to establish and administer their educational institutions.
The Constitution Bench headed by Chief Justice B. N. Kirpal, consists of Justice G. B. Patina, Justice V.N. Khare, Justice S. Rajendra Babu, Justice Syed Shah Mohammed Quadri, Justice Ruma Pal, Justice S.N. Variava, Justice K.G. Balakrishnan, Justice P.Venkatrama Reddi, Justice Ashok Bhan and Justice Arijit Pasayat.
The 11-Judge Bench took up the hearing of nearly 200 petitions urging it to re-examine how terms like 'minority', religion and education are defined in the Constitution. With the large number of petitions before it, the Court decided that the matter would be heard thrice every week till all the petitions had been dealt with.
Apart from defining minorities and related terms, it also had before it a list of other issues, based on a spate of petitions, which had gathered dust over the years challenging the admission policies of Mumbai's St. Xavier's.
Delhi's St. Stephen's College and other well-known institutions. The Bench was to answer crucial questions on whether the religious minorities' right to establish an educational institution includes the procedure of admission or it could be regulated by the State government or by the university to which they are affiliated. Defining religion itself as interpreted in Article 30(i) the Bench was also to consider the basis on which a community can be declared a minority in a State. In the St. Stephen's Case the Court ruled in favour of minorities but the decision has been reopened.The main issues raised before the Court are:The criteria to determine whether an educational institution is a Minority Education Institution (MEI).
In which areas does a particular community constitute a minority? What is meant by the expression 'religion' in Article 30 (1)?Can the followers of a sect or denomination of a particular religion claim protection under Article 30(i), on the basis that they constitute a minority in the State even though the followers of that religion are in majority in another state?
Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can the members of religious/linguistic group in State B claim rights flowing from Article 30(i) of the Constitution in respect of the above said educational institution established in State 'A'? Whether it would be correct to say that only members of that minority residing in State 'A' will be treated as members of minority for admission to that institution?
Would an institution be regarded as a minority educational institution because a person(s) belonging to a religious minority established a person(s) belonging to a religious or linguistic minority is administering it or it?
Whether the minority's right to establish and administer educational institutions will include procedure and methods of admission and selection of students?
Whether the admission of students to minority educational institutions, whether aided or unaided, can be regulated by the State government or by the university to which they are affiliated?
Whether the ratio laid down by the Court in the St. Stephen's case is correct?
As proceedings began, legal circles noticed a growing unease in government circles and a positive hostility in Bhartiya Janata Party and other members of 'Sangh Parivar', RSS, Vishwa Hindu Parishad and others.
Speaking as far away as in Jammu and Maharashtra, several leaders demanded that all specific rights given to the minorities be done away with, arguing that special rights for Muslims and Christians, in effect, meant discrimination against Hindus.
The case began in October 1993 with a five-bench referring the matter to a seven-Judge Bench framing three questions. The first question was 'What is the meaning and content of the expression 'minority' in Article 30 of the Constitution of India.
The second question related to determination of the expression - 'minority educational institution' while the third pertained to whether under Article 30; the minority educational institutions brooked no interference from the state or the affiliating university and whether they could admit students belonging to the relevant minority to the extent of 50 per cent of its intake capacity. That was decided in the famous but controversial judgment in favour of Delhi's prestigious St. Stephen's College.
However, on March 18, 1994 a seven-judge reframed the questions, taking the number of questions from three to seven.The number of issues has gone up before the present 11-Judge Constitution Bench.
The judgment whenever it is delivered will have far reaching legal, cultural and political consequences. For the first time the legal establishment of the country has been speaking with stances at variance with each other. The Solicitor General, Harish Salve before the Supreme Court, articulated the stand of NDA Government. It is at variance not just with the views of Attorney General Soli Sorabjee (who appeared before the court in a personal capacity but represented the stand of the '97 UF government also.)
The stand of NDA Government was arrived at after a series of inter-ministerial meetings chaired by Union HRD Minister M.M. Joshi and endorsed by the cabinet. It represents the onward march of 'Hindutva Brigade' on Gujarat pattern against minority educational institutions.