“No democracy”, Franklin Roosevelt once said, “can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities.”
The preservation of distinctive identities strengthens the nation. The visionary framers of our constitution fully understood this fundamental principle of nation building and thus, even Vallabhbhai Patel explicitly said in the constituent assembly: “Our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction”.
Similarly, G.B. Pant, while moving the resolution to set up an advisory committee on fundamental rights and the rights of minorities, stated that “the satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free state of India…now it is necessary that a new chapter should start and we should all realise our responsibility. Unless the minorities are fully satisfied, we cannot make progress; we cannot even maintain peace in an undisturbed manner”.
This broad and liberal vision led to the inclusion of Articles 29 and 30 in the constitution. These provisions, thus, should not be considered as mere exemptions from regulatory control or as clauses promoting identity-based privileges. They are an integral part of the sacred constitutional pact which the a democratic state has made with its minorities.
The right to equality in itself was considered insufficient as ‘equality in law’ precludes discrimination of any kind but ‘equality in fact’ may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations. It is easy to imagine cases in which equality of treatment of the majority and the minority, whose situations and needs are different, would result in gross inequality. The authors of the constitution recognised that India needed ‘substantive equality’ and thus they made provisions for reservation in favour of weaker sections and special rights for the minorities.
Moreover, individualistic rights on their own do not really lead to the preservation of communities and therefore, special group rights have to be given to the minorities. Article 29(1) lays down that “any section of the citizens (original expression was minorities) residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”. Thus, we recognise that different groups have distinct cultures of their own which they want to preserve. An individual’s right to community does not necessarily ensure that such communities will also be permitted to exist and flourish. Individual rights would be of no use if the community to which that individual belongs is vulnerable to hate, contempt, ridicule and now even physical injury at the hands of vigilante groups. The individual may have never been subjected to any kind of discrimination personally. But such an individual cannot enjoy self-respect if the constituent group to which she or he belongs is not duly respected.
As a matter of fact, even an individual’s right to live with human dignity (Article 21) would be seriously undermined if his/her cultural community is marked off in perverse ways. An individual’s life, dignity, and self-respect require, as a precondition, that his/her constituent group is also respected and not made the object of systematic targeting, hatred, discrimination or stereotyping. This will require creating spaces where the language, traditions and culture of those communities can flourish. Since state institutions cannot themselves promote any particular religion, language, script or culture, we need minority educational institutions. But we must remember that even Hindus have religious minority status in a few states and are fully entitled to all the privileges as linguistic minorities in the remaining states. The on-going controversy in the apex court about the minority status of Hindus in Kashmir is meaningless as the Supreme Court, in N. Ammad, has already said that the existence of a minority is a matter of fact which does not require approval by the state.
Special rights of minorities give vitality not only to secularism but also to democracy. The idea of special rights for minorities is not new and dates back to the 19th century. Article 19 of the Austrian Constitutional Law (1867) acknowledged that ethnic minorities have an absolute right to maintain and develop their nationality and their languages. Similar provisions existed in Hungary’s Act XLIV of 1868, and in the constitution of the Swiss Confederation of 1874. Minority rights were included after World War I in the five peace treaties that were negotiated between the Allied and Associated powers on one hand, and Poland, Czechoslovakia, Romania, Greece and Yugoslavia on the other. Special provisions for minorities were incorporated in treaties with Bulgaria, Hungary, Austria and Turkey. Albania, Finland and Iraq too declared that they would protect their minorities. The admission of east European countries into the League of Nations was made subject to the grant of minority rights. Minority groups were given the right to establish, manage and control charitable, religious, educational and social institutions, and the right to use their own language and religion freely. Complaints against any transgression of the provisions of the treaty could be brought to the Permanent Court of International Justice.
Similarly, Article 30 of our constitution gives minorities the right to establish and administer educational institutions of their choice. Non-minorities too have a similar right under Article 19. In fact, in the T.M.A. Pai case, an 11-judge bench of the apex court had held that unaided private institutions will have maximum autonomy. As far as higher education is concerned, while it is true that it is over regulated, it is not hundred percent correct to say that the minority tag is a prized regulatory possession. For minorities, particularly Muslims, neither establishing nor administering educational institutions is a cakewalk due to prejudices and the hostile attitude of regulators and state officials.
Private, unaided universities like Amity, Bennett or Ashoka are not at too much of a disadvantage. Like minority institutions, they too are exempt from the SC/ST/OBC reservations. Like minority universities, these non-minority universities too have the freedom to admit students of their choice, select their own governing bodies, have disciplinary control over their staff and fix their fees. In fact, unlike Aligarh Muslim University (AMU) and Jamia Millia Islamia (JMI), most non-minority private universities follow the rule of ‘hire and fire’ and teachers have neither the security of tenure nor the right to natural justice and procedural fairness.
Even though the apex court in the Kerala Education Bill and in subsequent decisions including T.M.A. Pai held that the “real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders into it”, yet AMU proposed only 50% reservation for Muslims (which was implemented only once in 2005). JMI also has a similar reservation policy since 2011. It is the state which has the right to approve the quantum of reservation.
In fact, universities like AMU and JMI hardly have any substantial autonomy as they receive funds from the government. While the president of India can nullify any decision of these universities, he has no such power in respect of private universities and universities established under Section 3 of the University Grants Commission (UGC) Act. All their statutes and ordinances too need presidential approval and are laid before the parliament. All Ministry of Human Resource Development (MHRD) and UGC regulations are applicable to them in terms of qualification of teachers, their pay scales and promotion and rule of departmental enquiries. All their accounts are audited by the comptroller and auditor general (CAG).
It is shocking to note that on one hand, we want minority universities to have the same governing structure and governmental supervision which non-minority institutions have but on the other, once they agree to adopt similar structure and control, we deny them their minority character. In AMU’s case, on this very basis, the Supreme Court denied the institution its minority character. Minority communities accept governmental supervision so that their institutions are efficiently run. The denial of the minority character on highly technical grounds and in total disregard to their origin and history is deeply frustrating.
No educational institution has a right to get government aid. But under Article 30(2), the state, in granting aid, cannot discriminate against minority institutions. In Kerala Education Bill itself, the Supreme Court had said that most minority institutions cannot survive without governmental aid. The court has consistently maintained that the receipt of governmental aid does not mean the surrender of minority character. Minorities invest their resources, properties and time and then educate 50% non-minorities in their institutions, yet we have problems with these institutions which are playing a major role in uplifting minorities.
Most educational institutions established by minorities do not even get clearance from their respective state governments. Since state governments have been refusing to recognise them as minority institutions, parliament has established a quasi-judicial body in the form of the National Commission on Minority Educational Institutions. After the T.M.A. Pai and Islamic Academy decisions, states have also created bodies which monitor the transparency and fairness in admissions and fees of minority institutions. National Eligibility and Entrance Test (NEET) and common counselling have now virtually taken away the minority institutions’ right to admit students of their choice.
The real issue is the maladministration of minority institutions. The Supreme Court has rightly held that the ‘right to administer’ does not include the ‘right to maladminister.’ Many private unaided minority institutions are in a mess and their management behaves in an arbitrary way. They even sell minority seats to non-minority candidates. These institutions are beyond the reach of poorer sections of minority groups. If we sincerely believe in the slogan of sabka saath, sabka vikas, not only must we recognise the minority character of AMU and JMI but also establish similar institutions as the Muslim community does not have the means to pay for unaided private minority institutions.
Faizan Mustafa is the Vice-Chancellor of NALSAR University of Law, Hyderabad.