- The government’s change of stance on whether Jamia Millia Islamia is a minority institution reawakens the festering disputes in Indian constitutionalism.
The two visions of Indian constitutionalism
- The two visions of Indian constitutionalism that are articulated in relation to Article 30 (1), that gives religious and linguistic minorities the right to establish and administer educational institutions of their choice.
- The core of the issue is whether this clause is meant as an anti-discriminatory and protective clause, to ensure that minority institutions are not discriminated against; or whether it confers upon minority institutions special privileges and a greater degree of autonomy that non-minority institutions do not enjoy.
The stakes in the constitutional issues around Article 30 (1) are high for a number of reasons, like:
- It will be politically tempting but a mistake to communalize the debate over Article 30 (1).
- The big backdrop to cases like these is the deep mess created in the regulation of education, and higher education in particular.
- Education policies, from admissions to recruitment, are now among the most litigated areas in law.
- This is because education itself is overregulated and the complicated degree of control to exercise over it creates all kinds of glitches.
- Even after the recognition of the right to run and administer education, it is subject to so much regulation and prohibition that it is not clear what it amounts to.
- Under these circumstances, being granted minority status became like a prized regulatory possession.
Special Privilege interpretation of Article 30(1)
- Under the “special privileges” interpretation of Article 30 (1), minority education institutions were given a degree of autonomy that many non-minority institutions rightly envied.
- Since education is a high-stakes game, this also led to a process of greater minoritization.
- More and more groups within states want to come under the ambit of minority institutions to claim these privileges.
- The full extent of minoritization of institutions is unknown because government data largely concentrates on whether schools are aided or unaided.
The differential regulation for minorities and non-minorities
- The differential regulatory burden imposed on minority and non-minority institutions varies from state to state depending on the private universities acts of those states.
- The principle idea is that there is a differential burden of regulation is broadly correct.
- This differential regulation affects even colleges within the same university.
- Differential burden itself would not be a problem, if it were related to some clear principles.
- Neither the financial character (whether an institution is aided or unaided), nor the educational purpose seems to matter with any degree of clarity.
The Courts decision
- The courts rightly held that minority institutions can impart broad secular education.
- The court, however, creates situations where institutions that are identical in purpose face differential regulation merely on account of who started it.
- To say, the differential regulation is no longer related to justice, or educational objectives, or protecting rights.
- It has become, in some instances, about merely giving an identity-based privilege.
Framing of education
- The framing of education regulation as rooted in identity-based privilege is reinforced in several ways.
- In the National Commission for Minority Educational Institutions Act, only minorities can be appointed to the Commission.
- There are not too many regulatory and quasi-judicial entities with these kind of extensive identity-based restrictions on membership.
- The Right to Education Act accentuated the problem of differential regulation. It exempted minority institutions from 25 per cent reservation for children from economically weaker sections.
Where does the objective of reservation lies?
- If the objective of reservation was social integration, this exemption was even more anomalous.
- It again reinforced the perception that Article 30 (1) was really about giving special privileges, not about protecting minorities.
Spot to focus upon
Over regulation and a projected sectarianism in state policy.
- Courts have never clearly articulated what a right of non-minorities to set up and administer an educational institution of their choice might look like.
- So the issue of the rights of minority institutions has become the wedge to open the debate on regulation more generally.
- But in this debate we are likely to see two forms of bad faith. The BJP will most likely focus on institutions like AMU and Jamia that can also be inserted into a communal narrative.
- Requirement is to find a way of returning to first principles that asks under what conditions which kinds of institutions need special protection and for what purposes.
- There need to have a national consensus on the rights of educational institutions in general and it gave them the relevant freedoms.
- Once rightly articulated, all kinds of institutions, including minority rights, would be protected.
What is a minority?
- The ‘definition’ refers to group of individual who are particularly smaller as the majority in a defined area.
- It however does not indicate as to what factor of distinction, subjective or objective are to be taken as the test for distinguishing a group from the rest.
- Thus, while considering ‘minority’, a numerically smaller group, as against the majority in a defined area, some place emphasis upon certain characteristics commonly possessed by the members constituting the minority and, to them, these characteristics serves as objective factors of distinction.
- In this sense the term used to cover “racial, religious or linguistic sections of the population within a State which differ in these respects from the majority of the population.”
The Minorities Rights: Article 30
- The Constitution nowhere defines the terms ‘minority’, nor does it lay down sufficient indicia to the test for determination of a group as minority.
- Confronted, perhaps, with the fact that the concept of minority, lie its problem, was intercalate, the framers made no efforts to bring it within the confines of a formulation.
- Even in the face of doubts being expressed over the advisability of leaving vague justiciable rights to undefined minorities, the members of the Constituent Assembly made no attempt to define the term while article 23 of the Draft Constitution, corresponding to present articles 29 and 30, was being debated, and, presumably left it to the wisdom of the courts to supply the omission.
How to protect minorities?
- Minorities face special disadvantages, depending on the circumstances, and they have to be taken into account in making policy.
- One needs to see if a minority right or interest is better protected if it can be articulated as application of a more general right that everyone has, rather than as a special exemption.
- The AMU and Jamia cases will be decided on the statutes that govern them.
But the communal character of this debate will not be defused unless the question of the larger freedom to run educational institutions is settled.