The Hindu : Courts & minority education

Online edition of India's National Newspaper
Monday, Dec 16, 2002

Opinion

Opinion - Leader Page Articles

Courts & minority education — I

By V. R. Krishna Iyer

Under the powerful impact of globalisation and privatisation, the mentality of the elite class has suffered a commercial conditioning even in jurisprudential understanding.

NO JUDGE writes on a wholly clean slate. Precedents persuade the Supreme Court but a larger Bench may overturn a lesser Bench. This is the fate of a recent ruling of the Court where eleven judges sat and, on a crucial point, overruled a smaller Bench. Although the Indian Constitution remains value-constant, the Executive has effectually reversed the social philosophy of the great instrument. Commercialising governance and `marketising' fundamentals are the bete noire of our Socialist Republic and judges are the sentinel on the qui vive preserving the paramountcy of the Constitution without further violation or erosion. The socio-economic vision of the Constitution is the lodestar that guides the court in its great hermeneutic task even though, as Cardozo observed long ago, the great tides and currents which engulf the rest of men do not turn aside their course and pass the judges by. It may equally strongly be mentioned that the predilections of the robed brethren do condition their rulings.

The latest pronouncement of the highest court in the TMA Pai Foundation case is no exception to the proposition of subtle psychic bias influencing impalpably the interpretive perspective and subconscious conviction of those called upon to pronounce on contemporary issues. Today, under the powerful impact of globalisation and privatisation, the mentality of the elite class has suffered a commercial conditioning even in jurisprudential understanding.

In that event, the Constitution misses its protective mantle of the judges and this has unconsciously, I suspect, happened partly in the reasoning of the otherwise well-argued `majority opinion'. A few confusions on fundamentals have marginally marred the verdict. The majority judgment, though only of six, is a ruling of a formidable 11-judge bench which can be reconsidered only by a still larger number, not easy to expect under present conditions. The only course open is to so read the closely and correctly reasoned (if I may say so with respect) pronouncement of Justice B. N. Kirpal as Chief Justice of India as to impart a progressive meaning proximate to the Constitution's conscience. What is obvious, but still needs emphasis, is that the two basic features of the Constitution are secularism and equality. This reiteration has been rightly done by the Supreme Court at a time when secularism is on the cross and equality is on the retreat. It is a happy augury that the highest court has strengthened secular and egalitarian values in the field of education by this restatement. The semantic amplitude of secularism as a concept is also briefly brought out by the Supreme Court.

Says Justice Kirpal in an expansive mood of judicial metaphor and emphatic vividness of expression what I quote: "The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub-castes; eighteen major languages and 1,600 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India. Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.

"A citizen of India stands in a similar position. The Constitution recognises the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognising the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces.

"The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 9 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation." (Para 158 to 161)

The real problem with the majority judgment arises primarily regarding unaided educational institutions. Several issues of deep import have been left open for decision by a `regular Bench'.

The country misses a great opportunity by this disinclination and may have to wait how long one never knows for a final adjudication. For instance, the court poses the question: can the followers of a sect or denomination of a particular religion claim protection under Article 30 (1), although the sect may belong to a religion which is in a majority in that State?

There are other practical questions arising in every State and may crop up even in dialect and denomination. Do they constitute a minority eligible for constitutional protection? Similarly, another issue: when an individual or group belonging to a minority religion or language sets up an educational institution with no religious or linguistic motivation or authorisation, does minority eligibility belong to this category? Again, the court evades and leaves the matter for a `regular Bench'. Evasion of decision today is invitation for profusion of litigation the next day and paves the way for docket explosion another day. An unaided institution set up for higher education must naturally be subject to state regulation. Why? The Court's voice sounds sublime, though with a dark note at the end:

"We, however, wish to emphasise one point, and that is that in as much as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, in as much as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution." (Para 57)

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

Harvest of hatred

Micawber's folly

Dealing with Washington & Moscow

Courts & minority education — I

Beyond the Modis

Probity in judiciary

A great humanist