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.
