2002: Indian Muslim Statements, The Milli Gazette

2002: Indian Muslim Statements
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ALL INDIA MUSLIM MAJLIS-e-MUSHAWARAT

Supreme Court Judgement on Minority Institutions has both Positive and Negative Features
On the Whole, the Judgement Dilutes Article 30(1) through Trade-off between Autonomy and State Aid
AIMMM Calls for Matching Reservation for Backward Minorities in all Government and Aided Private Institutions

New Delhi, 6 November, 2002: "The All India Muslim Majlis-e-Mushawarat (AIMMM) has carefully studied the majority judgement of the Constitution Bench of the Supreme Court on the scope and content of right of religious and linguistic minorities to establish and administer educational institutions of their choice under Article 30(1) of the Constitution.

The Judgement has several positive and constructive features e.g.
1. The endorsement of the right of the religious and linguistic minorities to establish educational institutions as unfettered, notwithstanding the fact that the judgement gives no direction to the State, university and other educational authorities to remove the existing fetters in terms of the hassle over, and denial of, recognition of their minority status and academic affiliation.

The direction that all MEI's, aided or unaided, should have a reasonable representation of non-minority students though the judgement does not fix a reasonable limit and leaves it to the mercies of the State Governments which often adopt an unsympathetic and even hostile attitude or provide clear-cut
guidelines for its fixation.

2. The AIMMM places on record its considered view that all MEI's, except those dedicated to religious instruction, should have a reasonable complement of non-minority students in order to introduce their students to the real world outside their portals.

3. The determination of the minority status of a community on the basis of its population in a state, through regrettably the Supreme Court has deferred a clarification on the point whether admission to the MEI's should be limited to the establishing minority in the State or extended to the same minority from other States where it constitute a minority. A latitude is necessary because due to its poor population in a given state, a minority community may, in many cases, be unable to a throw up enough students with minimum qualification to avail of the educational facility.

4. The ruling that all citizens have the right to establish and administer educational institutions under Article 19 of the Constitution and that private institutions cannot charge capitation fees but fix their fees at a reasonable level not amounting to profiteering.

However, the AIMMM has concluded that the judgement takes away by the left hand much of what it gives by the right.
a) By establishing a trade off between autonomy of administration and grant of state aid by establishing an organic link between Article 29(2) and Article 30(1) and thus subjecting the MEI which seek aid to their opening their doors to the non-minority students on merit basis. The judgement thus
not only curtails the right of the minority to administer the MEI's and, therefore, to determine their admission policy but also opens a wide avenue for administrative harassment and endless and avoidable litigation.
b) By its eloquent silence on the desirability of ensuring due representation of minorities in all non-minority as well as government institutions in the interest of national integration.
c) By the inherent illogicality that State aid which, in principle, should be available to all private educational institutions in a developing society under a welfare state has not been related to the fact of providing standard education, according to the prescribed syllabus, but to the religion of the establishing community or the student body.
d) By its institution of admission on merit in an institution of professional education established by an economically backward minority, even if it does not seek or receive state aid. This implies that if its institutions achieve excellence and offer courses which have employment potential, they are likely to be inundated by the students from the majority. This unfair dispensation will act as a disincentive because a poor minority cannot afford to establish an institution for the education of the majority.
e) By allowing government and quasi-judicial intervention in the relation between the management of the MEI's and their teaching and non-teaching staff which shall result in the closure of many MEI's established by economically backward minorities, as they are in no position to match the government scales of pay and other terms and conditions of service.

The AIMMM is of the considered view that burdened with the conditionalities, which may thwart the free exercise of their rights under Article 30(1) by the economically backward minorities, the dicta in the judgement that the minorities have 'the unfettered right to establish MEI's' and that 'the minority character will not be affected' are no more than a verbal consolation and that judgement seen as a whole dilutes the autonomy of the MEI's, and constitutes a retrograde and negative step whose impact will have to be monitored carefully and, if necessary, remedied by suitable measures in due course.

The AIMMM calls upon the religious and linguistic communities to endeavour to achieve academic excellence, to monitor the recognition and affiliation of their educational institutions by the State Governments, Boards and Universities concerned, to review their financial structure, to ensure
that even the unaided institutions have at least 10% representation of non-minorities, preferably from the deprived communities, in the student body and to concentrate on secondary and higher secondary education to provide feeding channels for university and professional courses.

The AIMMM also requests the secular parties to support reservation for Muslims, who constitute an educationally deprived and backward community, upto 10% in all government as well as private educational institutions.

Sd/- Syed Shahabuddin
ALL INDIA MUSLIM MAJLIS-e-MUSHAWARAT
N-44, Abul Fazal Enclave, Jamia Nagar, New Delhi - 110 025 Phone: 632 6780 Fax: 632 7346 Email: muslim@del3.vsnl.net.in q

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