Context

  • · The government has decided it does not agree that Jamia is a ‘minority’ institution

What is a minority educational institution?

  • A minority educational institution is one that has been set up by either a linguistic or a religious minority group, to keep alive and foster what it considers its unique and special features.
  • This may be recalling its past, its history, its education, or its texts.

Does the Constitution provide for minority educational institutions?

  • The Constitution in the chapter of Fundamental Rights, Part III, explicitly provides for the right. Article 30, titled “Right of minorities to establish and administer educational institutions”, says:
  • All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice
  • In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause
  • the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause
  • The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”
  • Article 29, “Protection of interests of minorities”, says:“Any section of the citizens 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.”

But isn’t there a conflict between the fundamental principle of equality and the special rights conferred on these groups by the Constitution?

  • Article 30(1) could seem to be in contradiction to Article 29(2), which says, “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
  • While the Constitution goes well beyond just a formal notion of equality, the question does often arise whether it is an absolute right or one which is somewhat circumscribed.

What are the challenges faced by minority educational institutions?

  • The education wing of the RSS, BharatiyaShikshan Mandal, (BSM) wanted to approach the Supreme Court with a review petition to reconsider the definition of minority status of the educational institutions as they wanted a new definition for ‘Minority’ and ‘minority educational institution’.

Implementation of RTE and Minority Rights:

  • The minorities are misusing its privileges and shying away from the implementation of RTE.
  • There are many minority institutions whose management comprises minorities but among students the number from majority community is more. Despite that, they neither implement RTE nor government’s public welfare policies.
  • The Law Ministry has given the advice that the government can withdraw its earlier support given to the 2011 order of National Commision for Minority Educational Institution which declared JamiaMilliaIslamia as a religious minority institution
  • The advice in this case, like the previous one, is on the ground that the university was established by an Act of Parliament and not set up by religious minorities
  • Definition from Supreme Court for ‘minority institution’ that would emphasize the composition of students and not of the management as the criteria.

Why the debate?

  • While a number of minority educational institutions exist, there are issues with regard to minority universities. This is because for incorporating any university, a statute is needed and that is done by state
  • Those who oppose the tag of MEI being accorded to AMU and JMI argue that since these universities are established through an Act of Parliament, these institutions are not MEIs
  • Those who argue against the current government’s stand hold that there is a difference between incorporation and establishment. The statutes incorporate these institutions as universities but they are still established by minorities and hence are liable to enjoy the special rights accorded to MEI mentioned above

Whether a secular state should establish a minority educational institution?

Arguments in favor:

  • Constitutional Provisions:
    • Article 30(1) confers the rights on religious and linguistic minorities to establish educational institutiuons.
    • The SC in its judgement in AzeezBasha vs UoI, 1968 accepted that universities come under the definition of “educational institution” in Article 30(1). A university can only be recognized so by an Act of Parliament. Thus the spirit of Art 30(1) dictates that it is obligatory on central govt to recognize minority universities.
    • Article 25(2)(a) states that the state can make laws to regulate or restrict the non secular activities of a religion.
    • Art 30 cannot be viewed in isolation and needs to be read with Art 26(a) which states that religious denominations can establish institutions for religious and charitable purposes as determined by SC in TMA Pai Foundation Case. AMU has been involved with commendable work in Social sciences and imparting education to Muslim youth which can be considered as charitable work.
    • State is duty-bound under Art 38 to implement all policies which minimize inequalities among different sections of the society. In such a scenario, setting up universities may be helpful as they adhere to highest standards of imparting education and are allowed to award degrees. Besides, revoking minority status from such institutions is also against SC adjudication in Kerala Education Bill Case which limits State regulation from depriving minority from managing the institution

International Law

  • Article 13(1) of the Council of Europe’s Framework Convention for the Protection of National Minorities, 1994, says: “Within the framework of their education systems, the parties shall recognise that persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments.”
  • Article 14(3) of the European Charter of Fundamental Rights (2000), which binds members of the European Union, says explicitly: “The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national law governing the exercise of such freedom and right.”
  • The United Nations’ International Covenant on Economic, Social and Cultural Rights, to which India is a party, recognises in Article 13(4) “the liberty of individuals and bodies to establish and direct educational institutions”.

Arguments against:

  • Under Article 27, no proceeds of any taxes shall be utilized for promotion or maintenance of any particular religion or religious denomination. AMU was receiving funds from the state. This was thus problematic.

Conclusion

More freedom to universities could help higher education

  • Course correction would be in the form of a regulatory body that has a vision for higher education, monitors quality, but allows universities to operate freely, instead of controlling them

Letting it go

  • The other step to reduce regulation is the government’s intention to select 10 public and 10 private universities and make them autonomous.
  • 20 universities have been invited to decide their own fate, without the interference of the government.

Need to change the government’s stance in dealing with the issue

  • The government has chosen to cancel the minority status of these two universities, even though theseare not the only ones that have minority status.
  • The government’s stance on Jamia and AMU, instead of underscoring ideology, should have opened up the debate on the larger regulatory mess in higher education
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