Interpreting minority rights

Minority Rights: Myth or Reality: A Critical Look at the 11-Judge Verdict with Full Text by M.P.Raju; Media House, Delhi, 2002; pages 336, Rs.195.

THE principles of secularism and pluralism have proved to be resilient in India despite aggressive onslaughts by fundamentalist forces claiming to represent the majority community, primarily because of the constitutional protection guaranteed to the minorities to preserve their language, religion and culture. This protection, enshrined in Articles 29 and 30 and grouped as Cultural and Educational Rights, has given the minorities a sense of security and belonging, especially in the context of the communal violence that marked Partition in 1947, as also the linguistic reorganisation of States in the mid-1950s. Therefore, any judicial interpretation of these constitutional provisions is bound to be debated intensely for its impact on the minority rights and to throw light on whether the intentions of our Constitution-makers in introducing these Articles have been honoured. The judgment delivered on October 31, 2002, in the T.M.A. Pai Foundation case on minority educational institutions (MEIs) by an 11-member Constitution Bench of the Supreme Court has elicited varied reactions. The court held that the rights of linguistic and religious minorities (as well as the majority community) to set up educational institutions of their choice are unfettered, but that the right to administer them is not absolute. The State and the universities could apply regulatory measures in order to maintain educational standards and excellence in such institutions, it held (Frontline, November 22, 2002).

The judgment is important from the point of view of the interplay between Articles 29(2) and 30(1). Article 29(2) lays down that no citizen shall be denied admission to any educational institution maintained by the state or receive aid out of state funds on grounds only of religion, race, caste, language or any of them. Article 30(1) guarantees all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The intention of the Constitution-makers would not have been to let Article 29(2) prevail over Article 30(1); that is, having allowed a minority community to establish an educational institution receiving aid out of state funds, its right to administer it by admitting eligible students from the minority community that the institution seeks to represent cannot be restricted, simply because it would result in the denial of seats to students belonging to non-minority communities.

However, nine of the 11 Judges concluded that as long as MEIs permitted the admission of non-minorities to a reasonable extent based on merit (what the reasonable extent is would be determined by the State), it would not be an infraction of Article 29(2). This part of the judgment invited noteworthy dissents by Justices Ruma Pal and S.S.M. Quadri.

The author of Minority Rights, M.P. Raju, a Supreme Court advocate and counsel for one of the petitioners, observes that there can be no room for compulsory reservation or quota for non-minority students as long as minority students are available. Only after students belonging to the particular minority group have been given admission will the rigour of Article 29(2) become applicable in an MEI, Raju explains, agreeing with the dissenting judgments of Justices Ruma Pal and Quadri.

Raju notes that the majority judgment attempts to give restricted meaning to minority rights, whereas the two dissenting judgments resort to a liberal interpretation in favour of the minority. For students of the sociology of law, the judgment offers useful lessons on the possibility of the effects of influences on the thinking and reasoning of the individual Judges. The fact that of the two dissenting Judges, one is a Muslim and the other a woman, `who belongs to a qualitative minority being a non-dominant group', has its own significance, the author observes.

In the view of the majority Judges, "any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf". Justice Quadri, in his detailed dissent (delivered on November 25, 2002) with this view, has pointed out that what Article 30 predicates is institutional autonomy on the educational institutions established and administered in exercise of the right conferred thereunder, which cannot be interfered with by the state except to the extent of framing reasonable regulations in the interest of excellence of education and to prevent maladministration.

Raju contends that the prejudices of the majority Judges have reflected in the form of obiter dicta, like the one above. He calls it a reflection of the unconscious prejudice which the majority Judges had with an implied premise that the minorities cannot have any fundamental right which is not available to the majority community or non-minorities. Another obiter dicta referred to by Raju is this: "At the same time, there also cannot be any reverse discrimination... No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions." Raju observes that such comments from the majority Judges are the creation of Freudian slips or the reflection of constitutional philosophy held by individual Judges. Although these comments, being part of the verdict, will not have any binding value, they can be picked up and used before the High Courts and the Supreme Court, Raju feels. To a lay reader, it is difficult to distinguish such comments from the general complaint of the Hindu Right against the `appeasement' of minorities, as articulated by the various wings of the Sangh Parivar.

The majority Judges have also held that even an aided institution should not become a government-owned and controlled one, and that they have to incur revenue and capital expenses. They, therefore, felt that the decision on the fee to be charged must necessarily be left to the private unaided educational institutions. This shows, according to Raju, that they seem to have been influenced by the winds of liberalisation and globalisation, as opposed to the interests of the student community.

Raju explains an important flaw in the judgment, with reference to the unit for the determination of a linguistic or religious minority. All Judges, except Justice Ruma Pal, held that the unit should be the State. Raju disagrees with the majority Judges' view that linguistic reorganisation of the States meant that for the purpose of Article 30, linguistic minorities ought to be determined in relation to State alone. The rights under Article 30 is available not only to the linguistic minorities of the major languages, relatable to the States, but also to the speakers of numerous minor languages that are not represented by any State of their own.

He has pointed out that in a unitary federal country like India, linguistic groups, even if they constitute a majority in a State, need protection under Article 30 against the legislative and executive actions of the Union, in relation to which they may be minorities. Therefore he has suggested that to determine minority character or status, the unit should be the one against which protection is sought or whose action is impugned as offending Article 30. If the executive or legislative action of the Union is under challenge, then the unit for the determination of minority character should be the Union. If an executive or legislative action of a State concerned is under challenge, then the unit to determine minority status should be the State. The majority Judges have inadvertently concluded that since linguistic and religious minorities are dealt together under Article 30, the unit should be the same. There is no incongruity in adapting two separate criteria only because both are dealt with under the same Article together, Raju observes.

Considering the gaps in the 11-Judge verdict, there is still considerable scope for redefining and enriching the concept of minority rights as guaranteed under the Constitution.