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In A Minority Of Many

In A Minority Of Many

Author: Davinder Kumar
Publication: Outlook
Date: May 20, 2002

Introduction: The SC steps in to clear all ambiguities around community-run educational institutions

In what is being considered in legal circles as a case that will have far-reaching ramifications, an 11-member bench of the Supreme Court is hearing the contentious issue of the rights of the minorities to run and administer educational institutions in the country.

Beginning with the meaning and content of the expression 'minorities' in the Constitution, the court will also examine whether the majority community too has the right to establish and administer educational institutions in the same manner as the minorities. These are just two of the eleven questions the court has framed for consideration after sifting through a batch of 200 petitions.

The import of the hearing can be gauged by the fact that it is for the first time in almost three decades that an 11-member bench headed by the chief justice is hearing a matter. The last occasion was in 1973 when a 13-judge bench heard the Kesavananda Bharati Vs State of Kerala case pertaining to Parliament's power to amend the Constitution.

According to legal experts in the 'minorities' case, the scope has been so set to clear all the existing ambiguities directly or indirectly associated with the running of minority institutions.

The technical questions involve a large number of debatable issues. For example, one of them is whether in states like J&K, Mizoram and Punjab where Muslims, Christians and Sikhs are respectively in the majority, can Hindus (who are in an overall majority in the country but in a minority in these states) be given similar rights. Similarly, whether Hindi-medium educational institutions can be granted the status of linguistic minority institutions in non-Hindi speaking states, and vice versa, is also a contentious issue.

What complicates the issue further is the plea by certain sects that they too should be given minority status. For example, the Brahmo Samaj, Ramakrishna Mission Ashram and Arya Samaj -all Hindu sects-are seeking minority status. The bench will, therefore, decide what is meant by the expression "religion" in Article 30 (1) of the Constitution. This is with reference to whether the various sects or denominations of a religion can qualify for minority status even if the parent religion has a majority following.

The issue of defining religious minorities has special reference to the highly-publicised debate over whether Jainism is a minority religion or not after the UP government refused to grant such a status to a Jain society-run educational institution in the state. Says senior advocate Shanti Bhushan, who is pleading on behalf of the Jain societies: "Jainism, Sikhism and Buddhism have always been regarded by the Constitution as separate religions. However, the UP government has pleaded that Jainism is a sect of Hinduism and hence institutions established by the community societies cannot be given such a status."

Another issue that has generated enormous interest is the decision of the bench to consider reviewing one of its major judgements pertaining to minority institutions, namely the St Stephen's College judgement in 1992. Upholding the fact that the right to select students is an important facet of administration, the court had then fixed an upper limit of 50 per cent for annual admissions of students belonging to the minority Christian community.

Petitioners from many minority institutions are against such a review. Appearing for the Christian Medical College, Vellore, senior counsel Anil Divan has told the SC that there is nothing manifestly wrong and neither has any mischief of such enormous proportion been alleged or demonstrated which could justify the wholesale reconsideration of such previous cases. Notes former chief justice of the Delhi High Court, Rajinder Sachar: "Many of us probably think that a review is not necessary.Sufficient principles have been laid down through all those cases. Therefore, a reasonable adjustment can be made."

Different states have conflicting views in exercising control over running minority institutions. Tamil Nadu strongly supports state control. While Maharashtra and Tamil Nadu have legal provisions governing all educational institutions irrespective of whether they are run by the minority community or whether they are aided or unaided by the state, others do not have any such law binding for everyone. Says Anoop G. Chaudhari, senior advocate pleading for Madhya Pradesh and Chhattisgarh before the bench: "In states like MP and Chhattisgarh there is no interference in the management of unaided minority educational institutions except for regulations concerning maintenance of educational standards. There is no cap on the admission or tuition fees that is being charged by these institutions. For aided institutions, there is restriction on tuition fees, which has to be at par with government schools. But there is no cap on admission fees."

There have been several cases in the past pertaining to the rights of the minorities to establish and administer educational institutions and to what extent the government can interfere in their functioning. On several occasions, the court has upheld the rights of the minority and said that government interference should be minimal and that too only for improving the functioning of such institutions. Says Shanti Bhushan: "When a trust or society is establishing an institution, they have an interest in its functioning. Bureaucrats cannot be expected to exercise the same care and caution. Hence, state control should be decreased."

Regarding the question of government interference, the bench will discuss whether a minority institution's right to lay down the procedure and method of admission, if any, would be affected in any way if it is aided by the state. The bench will also consider whether in such a case Article 30 of the Constitution, which gives special rights to minorities, will come into play. But then Article 29 (2) also protects a citizen's right of not being denied admission in any educational institution maintained by the state or receiving aid out of the state funds on grounds of religion, race, caste or language.

Similarly, technical points will be debated upon the issue of whether "non-minorities" (ie. Hindus) have the right to establish and administer institutions in the same manner as minority communities. Senior advocate and former chief justice of the Punjab and Haryana High Court, Rama Jois, has made a strong plea in this regard before the bench and said that there should be no such differentiation and everybody should be treated equal. But most legal experts feel minority rights are exclusive and have a special status in the Constitution and that the same cannot be extended to the majority. "The majority are free to establish and administer their educational institutions but that will be subject to some reasonable restrictions," says a senior counsel.

Though the apex court will be looking through a microscope at the contentious issues, some like Sachar believe that there is no cause for the minorities to press the panic button. Says he: "It is not as if the rights of the minorities to set up educational institutions or most of the rights that are given to them are under challenge.It will not happen because that is the secular principle."

The Supreme Court has done its bit to expedite the case. Lawyers credit former chief justice S.P. Bharucha for personally presiding over the constitutional bench for several days and clearing cases, some pending for the last 20 years. This helped the 11-member bench to begin hearing the matter.So, after almost ten years of being pushed from one bench to another, there is hope that this issue will be decided at last. Hopefully, obviating further review.
 


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