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Supreme Court judgement : it could have been worse

There is a sigh of relief, even though the educational activities of the Church among the poor, the Dalits and the marginalised may be severely hampered by bigoted state governments and district administrations after the razor-thin (six judges to five) judgement of the special 11 member Constitutional bench of the Supreme Court. It will be easier for richer groups and elite institutions, which now need fear no interference from the state. It could have been much worse though, going by some of the remarks in the rulings of the other five judges. Only Justice Quadri ruled that there be no interference in the educational rights of the minorities while another judge thought just the reverse, writes John Dayal

It is a coincidence, and not an omen, I hope, that the Supreme Court’s 11-member Constitutional Bench’s razor-thin majority decision upholding the right of the minorities to run educational institutions came on the same day that in distant Chennai, chief minister Jayalalithaa steamrolled through the Tamil Nadu assembly a Bill replacing her Ordinance banning what she whimsically calls "forcible conversions". Later in the Winter session, parliament may possibly take up for consideration a similar private member’s Bill moved by the current power minister Anant Geethe which also seeks to ban conversions by force, fraud and inducement – and merrily lists free education as an inducement that sends the priest or nun, or maulvi for that matter, to a stiff term of harsh imprisonment.

The Supreme Court has been a long time deciding this issue with some finality, and if after the majority judgement, there remain gray areas in many sectors, it is possibly because the rights of minorities vis-a-vis the majority – in a land that has seen Partition and its acrimony and bloodshed and which is today possibly as much bound in the matrix of communal identities – have always been a matter of much debate, apprehension and even antagonism. It ought to be remembered that even in the Constituent Assembly, when what are now Articles 29 and 30 were being discussed, many a freedom-fighter, otherwise of impeccable pedigree, bared communal fangs. There is much that India may be ashamed of in the manner in which Article 29 eventually came to be a part of the Constitution, and in the manner in which many a stalwart of the freedom struggle sought to circumscribe the freedoms inherent in Article 30 for the minorities with the reins of Article 29. While Article 30 (1) provides that "all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice", Article 29 (2) says "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". Predictably, the Article 29 versus Article 30 discussion figured in the Supreme Court, and at least one dissenting judge in a fortunately minority judgement has voted on the side of Article 29 as being more powerful than the rights granted by Article 30. God Forbid, this could possibly also have been the main judgment in a smaller bench!

This is why the first reaction of the minority communities, and not just the Christians, though they run the most educational institutions, has been one of heaving a sigh of relief. It could have been much worse. There is an inherent Catch-22: if you want to run institutions for the poor with government aid, you get more than a partner. You get a master who takes away much of your freedom and can, and will, impose the state’s will on just about anything barring your freedom to still give admission to some children of your own community. Implied in this Catch-22 is the moral dilemma for the Church – should they go in for self-supporting high-cost high-fees institutions which will not invite any government interference, or continue to walk the razor’s edge risking confrontation to be able to carry out their mission to the poor by opening more schools and colleges in rural and tribal areas, and for the Dalits, an areas hitherto neglected by default, and sometimes by design.

It was because of the interference of state governments, riding the power of education as a subject within their realm (though the Centre too has its responsibilities) and their poking their nose in the affairs of the institutions that friction first arose. Scores of litigations in the past had taught the Church one lesson – every time they went to the courts, they came back with warm words of praise and assurance of their rights, but with much the rights chipped away. Many judgments – many overturned now – ruled that Christian institutions could not admit more than 50 per cent from their own community, a great blow to centres of national excellence such as St Stephen’s College. Other state governments took the easy way out demanding seats by pressure and persuasion, or delaying expansion projects and new proposals.

In the face of over 200 such petitions, the Supreme Court in 1993 decided it was time to take stock of the situation once and for all, so to say. A five-judge Bench referred the matter to a seven-judge Bench framing three questions including what is the meaning and content of the expression minority in Article 30 of the Constitution of India? The second question was related to determination of the expression MEI (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.

On March 18, 1994, a seven-judge Bench reframed the questions and increased the number of questions from three to seven. On January 7, 1997 another seven-judge Bench reframed the questions.

After he assumed office, Justice BN Kirpal decided to revive the 11-member bench and hold day-to-day hearings. The Bench comprised Justice B N Kirpal, 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 Venkatarama Reddi, Justice Ashok Bhan and Justice Arijit Passayat.

The broad issues framed were: Where a religious or linguistic minority in State 'A' establishes an educational institution in the said state, can the members of the religious/linguistic group in State 'B' claim rights flowing from Article 30(1) 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 the minority vis-à-vis such institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or it is being administered by a person(s) belonging to a religious or linguistic minority? Whether the minority's right to establish and administer educational institutions of their choice 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 the institution is affiliated? Whether the ratio laid down by this Court in the St Stephen's case (St Stephen's College versus Delhi University) in 1992 was correct? 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(1) on the basis that they constitute a minority in the state even though the followers of that religion are in majority in another state?

The hearings themselves were remarkable for the number of interventions, both written and oral, by counsel for the petitioners, and for the role played by the Central government. In an extraordinary move, the court itself asked Advocate general Soli Sorabjee to make a personal intervention, in his own capacity. Sorabjee did so with impeccable impact, upholding the irrevocable rights of minorities under Article 30 to establish their own institutions. Government’s counsel, Solicitor General Harish Salve, was less fortunate. On his shoulder fell the dirty job of pleading the government’s hostile point of view, articulated in a cabinet decision, no less. 

The cabinet note, which the Outlook magazine published, was formulated on the basis of the group of ministers' recommendations that aided minority education institutions (MEIS) can't reserve seats for minority students. Even unaided MEIs, affiliated to recognised government-aided universities, don't have absolute discretion in matters of admissions or administration. The government contended, "No provision in the Constitution confers upon section of citizens any right that would be above national interest." According to Outlook, the cabinet note underscored the shift in the government's stance since '97, when the then attorney general, Ashok Desai, had argued the case before a seven-judge bench. On whether the state could have a say in the administration of minority institutions, the previous stance was that a limited role could be played by the government, only for the benefit of the minority community. But the BJP government struck a tougher stance, maintaining that the state can make regulations in the national interest.

Similarly, on the question of what "minority" means, the Union government said, "Article 30 recognises minorities based on language or religion", whereas the H.D. Deve Gowda government had skirted the issue on the grounds that it was a sensitive matter "having potential for creating disharmony". The Deve Gowda government's position, on whether non-minorities could establish educational institutions just like minorities, was one of protective discrimination. The Vajpayee government said the right to establish educational institutions was available to both majority and minority groups under Article 19(1)(g) to every religious denomination and every section of all religious denominations under Article 26. As for the ratio of reserved to open seats, the UF government had supported quotas on the ground of religion. But the NDA government said the reservation claim was not acceptable, arguing strongly for overturning the judgement in the St Stephen's College case, which had granted near-autonomy even to aided MEIs .

The mind of the present BJP-led Hindutva government was amply clear in one exchange, on the issue of how minority institutions admit their own students by giving extra marks as weighteage. Chief Justice B.N. Kirpal asked Sorabjee if an aided minority institution could, instead of having a quota for students of its community, give preference to them through extra weightage of marks. Sorabjee then told the 11-judge bench hearing the case that such a preference would not violate Article 29(2) so long as it was ‘‘rational and not disproportionate.’’ Salve’s counter, as reported, was: if an aided institution is permitted to give preference to a certain community, then an institution ‘‘maintained by the state’’ will also be entitled to do so as Article 29(2) applies ‘‘uniformly’’ to both of them. (Article 29(2) guarantees that ‘‘no citizen shall be denied admission into any educational institution maintained by the State or receiving State funds on grounds of religion, race, caste, language or any of them.’’) Salve said since ‘‘Article 29(2) can’t speak in two voices,’’ the preference proposal will have dangerous repercussions as government institutions will also get the right to discriminate on religious or linguistic grounds. 

The Solicitor General also sought to counter Sorabjee’s contention that ‘‘in the field of international law relating to minorities, it is generally accepted that minorities, on account of their non-dominant or vulnerable position in society, in addition to the guarantee of non-discrimination available to all persons, require special and preferential treatment.’’ 

The final judgement has to be viewed in the context of the government’s position, as the governments in states and the Centre now seem vested with powers they did not possess. If Salve’s words reveal the mind of the government, religious minorities in particular have every reason to be apprehensive.

We still await a certified copy of the full judgments. But the media, specially the Hindu, had given extensive coverage to the words of Chief Justice BN Kirpal who read out the majority judgment. The Supreme Court, said the Hindu, re-defined the rights of "minorities" to establish and run educational institutions of their choice. It held that while unaided minority institutions would have unfettered rights, aided institutions could be subject to minimal regulatory measures by the state. The 11-judge Constitution Bench, headed by the Chief Justice, B.N. Kirpal, in an unanimous verdict on the 11 questions framed by the court held that the words "of their choice" in Article 30 (1) "indicates that even professional educational institutions would be covered by Article 30". On the question "who constitutes a minority", the Bench said, "The linguistic and religious minorities have to be considered on the basis of States and the population therein as the States were reorganised on the basis of language." The main judgment of the Bench was written by Mr. Justice Kirpal. Four other judgments giving different interpretations were written by Mr. Justice Khare, Mr. Justice Quadri, Ms. Justice Pal and Mr. Justice Bhan.

On the issue that the majority community also should have similar rights, the Bench held that "all citizens have a right to establish and administer educational institutions under Article 19 (1) (g) and 26, but this right is subject to the provisions of Articles 19 (6), viz. reasonable restrictions and 26 (a), viz. to establish and maintain institutions for religious and charitable purposes". It declined to answer the following questions — "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 (1) on the basis that they constitute a minority in the State, even though the followers of religion are in the majority in the State?" 

Explaining the extent of state control, the Bench said admission of students to unaided minority educational institutions (UMEI), where the scope for merit-based selection was practically nil, could not be regulated by the State Government or university, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. However, it said, this right was subject to the condition that "admission to the unaided educational institution was on a transparent basis and merit was adequately taken care of". 

On aided institutions, the Bench made it clear that "a minority institution does not cease to be so the moment grant-in-aid is received. An aided minority educational institution would be entitled to have the right of admission of students belonging to the minority group. At the same time, it would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30 (1) are not substantially impaired and further, citizens' rights under Article 29 (2) are not infringed". The Bench empowered the State Governments to notify the percentage of non-minority students to be admitted; it would vary according to the types of institutions, the courses of education and other factors such as educational needs. Observance of inter se merit amongst the minority group could also be ensured. In the case of aided professional institutions, the Bench said it could be stipulated that passing of the common entrance test held by the state agency was necessary to seek admission. As regards non-minority students who were eligible to seek admission for the remaining seats, admission should normally be on the basis of a common entrance test. 

On the rights of minorities to have their procedure of admission, the Bench said, "A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent and the selection of students in professional and higher educational colleges should be on the basis of merit." Further, "the procedure adopted or selection made should not tantamount to misadministration. Even an UMEI ought not to ignore the merit of the students for admission while exercising its right to admit students to the colleges, as in that event, the institutions will fail to achieve excellence". 

It is quite clear that the court has followed the simple principle that if an institution makes no demands on the state, the state can make no demands on the institution. This would seem to be in keeping with the principles of globalisation. Perhaps it will encourage foreign capital – from NRIs and others – to come in and open upper-end elite schools which will be in the nature of international schools – self-financing, so to speak, with the fees alone sufficient to run the institution. What happens when a congregation opens a school and hostel in a tribal area and seeks government help to pay the fees of the teachers as per the latest wage board set up by the government for minimum wages to teaching and non-teaching staff? By the court’s ruling, the state will apply regulations of quality, and "merit" in admissions (no one has explained how you test merit in four-year olds for primary school and how can you test merit for Dalit boys if you examine them in English in an urban centre competing with the sons of fourth generation high income literates). The government decided how many children you take from your own community, and it can, arguably tell you that since Christians are only two per cent in New Delhi, the national capital’s elite Christian schools can take no more than two or perhaps even four percent of their students, after all that is twice as much as is warranted by the population ratio. A ridiculous argument, not beyond the pale of implementation in state where a former BJP minister once wanted liquor clubs next to churches because he thought liquor was drunk in churches anyway during worship! The state would also set up tribunals to sort out staff matters with the district judge – the same judge who has so much powers against conversions – making it clear that discipline in the school was a matter of district order, rather in the power of the school principal and manager. This is the thin edge of the wedge.

That is, at this moment, the biggest grey area in the Supreme Court’s momentous judgement.

How will it define and monitor the extent to which national, state and district administrations can go? How will it weed out bigotry and prejudice from those in charge of administration of the educational system, and those, now, in power over MEIs , aided or unaided?

Above all, how will the government encourage NGOs and religious minorities to go out to the poor and bring them the universal education, which it promised, but has not been able to deliver?

Education is like the poverty line. The people below the education line as those below the poverty line need justice not by way of pronouncements but by way of food, and real education.

And as far as the majority’s right to run institutions, I hope it is not legal sanction to the Ekal Vidyalayas which teach hate and fanaticism, or the institutions of the Sangh Parivar for whom the minorities are aliens with no place under the Indian sun.
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