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Attorney-General does not favour curbing minority rights

Attorney-General of India, Soli Jehangir Sorabjee, submitted before the Supreme Court on July 25 that the rights granted to minorities under Article 30 of the Constitution to establish and administer their educational institutions was absolute, and therefore beyond the purview of the interference of any outside agency. Various forces in the country, including the ruling BJP, would like to curtail these rights. 



Sorabjee, took a contrary stand, and cited several international treaties and declarations, besides Supreme Court judgments. He said, "According preferential treatment to minorities in respect of their cultural, linguistic and educational institutions is not in the nature of a privilege or concession but their entitlement flowing from compulsion of the mandate of equality, that is de facto equality."



"The fundamental right of administration of a minority educational institution under the Constitution's Article 30, on its term and language, is absolute," Sorabjee told the court. 

An 11-judge Constitution bench headed by the Chief Justice, Justice Kirpal, is at present hearing arguments on over 200 petitions on various aspects of minority educational institutions. 

Sorabjee said that the management of minority educational institutions should be free of government control. This was necessary so that there be enough scope for the founder or their nominees to mould the institution in the way as he/she or they deemed fit and in accordance with their ideas to serve best the betterment of their respective community.

He, however, added that "no fundamental right in our Constitution is absolute and unregulated." This aspect was equally applicable to Article 30. The minority institutions could not claim "immunity" against general laws relating to law and order, health, hygiene and the like. However, the management of minority institutions is "not open to interference by the executive or any outside agency." 

"Any interference which erodes that right unnecessarily, affects the autonomy of the educational institution and would be impermissible under Article 30." At the same time, Sorabjee made it clear that the said institutions could not have the right of arbitrary dismissal of a teacher, and thus could not claim immunity from judicial scrutiny in respect of such action, or a limited supervision. There should be a valid scope for the imposition of regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order. Besides, regulations could also be made that would serve the interests of students and teachers and preserve uniformity in standards among the affiliated institutions, he said. 

The Attorney-General’s submission stood in bold contrast to the submission made by Solicitor-General of India Harish Salve on July 16, on the issue. The Attorney-General and Solicitor-General are respectively the number one and number two law officers of the country. 

Salve, who represented the Central government, while submitting before the Constitution bench had said that the minorities had no absolute rights under the Constitution to establish and administer educational institutions, as such a right was subject to "reasonable restrictions." 

"Article 30 confers the right to a minority to establish educational institutions and administer them, but the right is not so wide to block state laws which are applicable to all and enacted for attainment of secular objectives," Salve submitted before the SC bench. 

He said that secular laws meant to achieve secular objectives would be applicable to educational institutions established and administered by minorities also. He further argued that if the institution was wholly funded by the State, then the minorities stood to lose their right to administer them, the rights conferred under Article 30 notwithstanding. 

Salve had contended that Articles 29 and 30 of the Indian Constitution should not be read in isolation, and that these articles were required to be read in consonance with Articles 14, 19,25, 26 and 28. He also said that under the constitutional scheme of things, there was no absolute right as no constitutional system had accepted such rights. 

However, if Article 30 was read in isolation, then textually there was no restriction whatsoever regarding establishment and administering of minority educational institutions. As such, constitutionally this itself negated Solicitor-General Salve’s contention on the said issue. 

Salve said that the minorities were being accorded a preferential treatment and, sought to stress the fact that the right granted to minority institutions was a "privilege and concession." 

Sorabjee, took a contrary stand, and cited several international treaties and declarations, besides Supreme Court judgments. He said, "According preferential treatment to minorities in respect of their cultural, linguistic and educational institutions is not in the nature of a privilege or concession but their entitlement flowing from compulsion of the mandate of equality, that is de facto equality." 

The Attorney-General chose not to represent the government while deposing before the Supreme Court in this case, while the solicitor-general spoke for the government. 

The Supreme Court is hearing arguments at a time when minorities, especially Muslims, are under great strain in India. Minorities fear that the Hindu nationalist BJP-led government at the Centre is inimical to their interests. 

The present government has already unleashed a propaganda campaign against the madrasahs (Islamic schools) in the country. Without providing any specific proof, it accuses them of teaching terrorism and churning out terrorists. An order passed last month by the central government has restricted government aid to only those madrasahs which obtain security clearance from official agencies. This effectively bars aid to these institutions since obtaining such clearance is nigh impossible. Hindu outfits have been demanding closure of all madrasahs in the country.
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