The Hindu : The minorities case

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Friday, Nov 15, 2002

Opinion

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The minorities case

By Rajeev Dhavan

The biggest muddle appears to be on the effect of state funding... A grant to a minority educational institution does not alter its raison d'etre to serve its own community.

IMPORTANT CASES are not to be decided in this way. K.M. Munshi's prediction to the Constituent Assembly that one day 11 judges would decide minority education related issues was guesswork not prescient wisdom. At that time, 11 judges were not contemplated for the Supreme Court. But, 11-judge Benches are not devised to rush through proceedings, deny equitable rights of argument to all, arbitrarily delete cognate issues from consideration and deliver judgments quickly to meet retirement deadlines. After delivery of judgments, Justice Quadri reserved the right to `dilate' on some aspects in a `separate reasoned judgment' later. Whether this is permissible is a vexed issue. But, it reinforces the view that adequate time was not available — even to the judges. Lawyers and litigants felt the pressure of time even more acutely. The minorities are relieved because the result could have been worse.

An 11-judge Bench of the Supreme Court is virtually impregnable and can only be overruled by a 13-judge or larger Bench. So far, only one 13-judge Bench was created in the Fundamental Rights case (1973) under pressure of constitutional amendments to re-write Indian constitutionalism. In the Minorities case (2002), there was no excuse for an 11-judge Bench. The original reference of 1993 to 7 judges would have sufficed. But, between 1993-2002 the reference was enlarged — not because it was necessary, but because the judges wanted it so. After 11 judges have ruled, there is little reprieve.

The first aspect of the judgment deals with the Unnikrishnan case (1993) which nationalised admissions to professional and technical colleges. Everything went wrong with the Unnikrishnan case scheme. The better students got the `low fee' seats. The worse students could not afford the `payment' seats which went waste. The Non-Resident Indian (NRI) quota had super high fees. The working budget refused to be balanced. The Unnikrishnan case created havoc.

The Unnikrishnan case verdict also decreed that children have a right to be educated till the age of 14 years. This latter part of the verdict remains unscathed. But, the rest has been overruled lock, stock and barrel. The Unnikrishnan case verdict's somewhat fuzzy view that the right to establish and administer educational institutions was too sacral a social duty to be a guaranteed fundamental right has given way to the brand new doctrine that education can be an occupation with the fundamental right to create a "reasonable surplus to meet (the) cost of expansion". Profit but not profiteering is permitted. This aspect of the Minorities case (2002) is a charter for private enterprise taking over all levels of education under limited `criteria setting' regulations to preserve standards. Since nothing is worked out in any great detail, a pandora's box of litigation can be expected for an otherwise partly welcome measure which will generate quacks as well as genuine educators.

But, what happens to the rights of linguistic and religious minorities to establish and administer educational institutions of their choice under Article 29-30 of the Constitution? This has received the considered attention of the Supreme Court in the Kerala Bill (1959), the nine-judge Bench Xaviers caase verdict (1974) and at least 50 other leading cases. During the hearings, the Court was strongly advised to stay within these earlier judgments which had combined pragmatism with a sound secularism. It did so with scant respect to earlier precedent and without paying much needed attention to the principles underlying them. The reason for this may have been that since everyone's right to make education an occupation was protected, there was a lesser interest in refining the protection afforded to minority educational institutions resulting in throwing out the minority baby with the general bath water.

India's Constitution uniquely protects the greatest human and social diversity the world has ever known. Such a splendid diversity can only be sustained if the maximum leeway is given to minority institutions to sustain and transform their own culture. Our Constitution accepts that this is best done through minority and religious institutions which summon both people from their own and other communities to contribute to the brilliant mosaic of Indian learning. Had that not been the objective of the Constitution, it would have been enough to guarantee freedom of speech, belief and business. But, our Constitution earmarked special rights to religion and minorities to establish `institutions' and preserve autonomous control over these institutions. The regimes of regulatory control in the general freedom articles (Articles 19 and 21) are necessarily different from the special regimes over the specially protected religious and cultural institutions (Articled 25-30)? The latter are not defeasible by a mere appeal to the public interest. From 1963 to 1974 and beyond, the Supreme Court had recognised the speciality of these group right dispensations and decreed extra special scrutiny so that religious and cultural rights were not whittled away — especially those dealing with the autonomous working of religious and linguistic educational institutions. This settled law has now been discreetly undermined. Greater control will exist. Justice Kripal's majority judgment (for six judges) even requires special tribunals be set up for grievance redress of employees punished or dismissed by minority educational institutions. Unto us vast new litigation is given. Surely a fair due process in the hands of the institution itself was sufficient.

But, the biggest muddle appears to be on the effect of state funding. If a grant is given for the upkeep of a Hindu temple or for Haj, these do not become either state or secular activities. By the same logic, a grant to a minority educational does not alter its raison d'etre to serve its own community. Earlier, the St. Stephen's case evolved a formula to permit up to 50 per cent minority students by aided institutions. This decision was much criticised. A constitutional birthright cannot be traded in for a mess of pottage. In 1959, the Supreme Court recognised that aid was essential to sustain many institutions. Now, the latest decision of 2002 undermines the St. Stephens decision further by allowing the State authorities to fix a proportionate percentage of admissions permissible to the minority in their own institutions. Both the principle of proportionality as well as its fixation by the state directly kill the autonomy of minority institutions over admissions — a point partly recognised by Justice Ruma Pal; and, more fully, by Justice Quadri.

When the Constitution was made, there was little doubt that `minorities' were to be determined on a national basis. Sikhs, Muslims, Christians and others were minorities in India wherever they lived. This broad view of the Constitution has now been altered by the majority judgment. Minorities are now to be determined on a State-wise basis. Sikhs in Punjab, Christians in the Northeast, are not minorities per se. They have to travel outside their States to become minorities. This perambulatory notion of minorities offends the purposes for which these articles were created. This is all the more so because the Court has not defined important questions about the definition of minorities (including those relating to sects and dialects) or the location of minority institutions in majority areas. Without all that, some of the Court's answers are skewed and meaningless.

The Minorities case read the Constitution in bits and pieces like Tarot cards rather than comprehensively. Ad hoc solutions have evaded principled answers. The judges unite and divide on many issues. First principles for minority protection have been overlooked. The minorities have good reason to be worried about being coopted into the State. This is something the Supreme Court avoided earlier.

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