November 2005 
Year 12    No.112

Cover Story

Minority institutions
Rights or privilege?


The recent Allahabad High Court judgement ruling that Aligarh Muslim University
is not a minority institution has sparked a nationwide controversy


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.

(Mihir Desai is an advocate, Mumbai High Court.)

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