TAMIL NADU

Minority rights in education

What is the meaning of minority status for an educational institution? What are the criteria by which such status is conferred?... These issues are not likely to become less contentious even after the verdict of Supreme Court .

THE SUPREME Court's October 31 verdict on the right of religious and linguistic minorities "to establish and administer educational institutions of their choice" (under Article 30(1) of the Constitution) has far-reaching and wide-ranging implications. While the judgment apparently settles some of the contentious and sensitive issues which have been under legal scrutiny for long, its complex and multi-layered nature raises some fresh questions along with a few old ones in new forms. It has reiterated earlier verdicts and redefined and clarified several constitutional provisions. It has declared as unconstitutional a previous judgment hitherto considered an authoritative and binding direction from the apex court.

The Constitution Bench has given a redefinition of the place of Article 30 in the constitutional scheme of rights linking it to secularism and equality — "the two basic features of the Constitution". "The essence of Article 30 (1) is to ensure equal treatment between the majority and minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another," the Supreme Court ruled.

The clarification of the Article under scrutiny as a guarantee of secularism and equality is to be welcomed. However, as equality and secularism are ensured under Articles 14 (the right to equality), 15 (prohibition of discrimination on grounds of religion etc.), 16 (equality of opportunity in matters of public employment), 25 and 26 (freedom of religion), the significance of Article 30 (1) should be seen as an additional guarantee. A few questions are relevant in this connection: If "the essence of Article 30 (1) is to ensure equal treatment between the majority and minority institutions", what is the meaning of minority status for an educational institution? What are the criteria by which such status is conferred? Can any institution started by any person or group in a minority community claim minority status and enjoy its benefits? These issues are not likely to become less contentious even after the Supreme Court verdict. Some unhealthy trends in the field of education are likely to be encouraged by the interpretation of the judgment. Important concerns related to equity and social justice seem to have been ignored by the judgment. Parts of the judgment may be used to buttress arguments in favour of the rule of market forces in higher education. The judgment gives unfettered freedom to unaided minority educational institutions. The only regulation a State Government or University can make is regarding the qualifications and minimum conditions of eligibility in the interests of academic standards. The state can make no laws regarding admissions or fees in such institutions. The only condition is that admission to unaided educational institutions should be "on a transparent basis and merit was adequately taken care of".

On the other hand, the judgment gives scope for a tightening of the regulations, including those on admissions, in minority institutions which receive grant-in-aid. In the absence of any guidelines from the Supreme Court in the matter, there is ground for genuine concern that some States may arbitrarily impose restrictions on such institutions. One of the questions addressed by the Court was "Whether the ratio laid down by this court in the St. Stephen's case (St. Stephen's College vs. University of Delhi, 1992-1 SCC 556) is correct? If not, what order". The Court has now decreed that "while the basic ratio is correct, a rigid percentage cannot be fixed". The Supreme Court has left it to the State authorities to decide the "reasonable percentage". If the State authorities in fixing the percentage deny the benefit of minority institutions to vast sections of the minority community, the minority character becomes only that of the management of the institution. This obviously is not the intent of the constitutional provision. The possibility of greater restrictions on aided minority institutions along with the attraction of the unfettered freedom of unaided institutions may encourage managements of many aided minority institutions to convert them to unaided institutions. Such a trend will only be welcomed by States which are already beginning to withdraw from public education. This will be to the detriment of large sections of students from low income and poor families who benefit from aided minority schools and who cannot afford the high fees in unaided institutions.

Of far greater ramification is the Constitution Bench's annulment of an earlier decision of the Court. The judgment has held that with regard to the decision of the court in Unnikrishnan J.P. vs. State of A.P. 1993, "the scheme framed by the court and the direction to impose the same except where it holds that primary education is a fundamental right is unconstitutional". The scheme and the direction had the force of law for the last nine years and exercised social control over private professional institutions.

The question may be raised why the Court felt it necessary to deal with this question while considering the rights of minorities. By declaring the scheme to be unconstitutional the Supreme Court has also rejected the highly relevant ideas behind the scheme. The Unnikrishnan case judgment stated, "the idea behind the scheme is to eliminate discretion in the matter of admissions. It is this discretion that has led to the commercialisation of education. Commercialisation of education should not be permitted". If the scheme was meant to prevent commercialisation what is the message given by the Court by declaring it unconstitutional? The Unnikrishnan case judgment was given at a time when globalisation was only beginning to influence education. But now with official sanction for the idea that market forces should decide policies on higher education the implications of rejecting judicial decisions opposed to commercialisation are serious.

The latest verdict upholds only that part of the judgment in the Unnikrishnan case where it says, "primary education is a fundamental right". What the earlier judgment says is that "every child/citizen has a right to free education until he completes the age of 14". At a time when a flawed constitutional amendment — flawed by absence of any reference to education up to the age of six — is being enacted, a clear definition of the constitutional provisions on the right to education would have been helpful.

The latest judgment takes up also the question of capitation fees from the earlier judgment which had stated, "capitation fee means charging or collecting amounts beyond what is permitted by the law". The new judgment while holding that "the principle that there should be no capitation fee or profiteering is correct", says, "reasonable surplus to meet the cost of expansion and augment facilities does not, however, amount to profiteering". The subtlety of the distinction that the Court seeks to make here will unfortunately become a green signal for `free market' in professional colleges.

There was another important idea behind the scheme in the Unnikrishnan case judgment. On the right to establish an educational institution, the Court had said, "such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1) (g). Imparting education cannot be treated as a trade or business". Declaring that the Unnikrishnan judgment is unconstitutional may imply that the idea behind the scheme that "education cannot be a trade" is also rejected.

It will be unfortunate if the Supreme Court judgment on minority rights is used to promote commercialisation of trade in education.

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