Insights into Issues: Minority Educational Institutions and Minority Status
- November 30, 2016
- Posted by: INSIGHTS
- Category: Insights into Editorial
Insights into Issues: Minority Educational Institutions and Minority Status
In January, the central government reversed the stand of its predecessor Government and decided not to support minority status for Aligarh Muslim University or Jamia Millia Islamia.
Background of the Issue
- AMU was founded as the Madrasatul Uloom in 1875 in Aligarh, and evolved into the Mohammedan Anglo Oriental College.
- In 1920, the Indian Legislative Council set up the university, and all assets of Mohammedan Anglo Oriental College were transferred to it. Those arguing for minority character say that this was done by an Act as that was the only way a university could be set up at the time.
- In Azeez Basha vs UoI, 1967 case, the SC ruled that AMU was not a minority educational institution as it was set up by British legislature, and not by Muslims
- In 1981, Parliament passed an AMU Amendment Act, which accepted that AMU was set up by Muslims
- The Allahabad High Court, in 1981, ruled that the 1981 Act was ultra vires of the Constitution, and that AMU was not a minority educational institution. This decision of the HC was stalled by SC
- Recently, the Central government has filed a fresh affidavit in SC reversing the earlier position that the AMU, a Central University, can not be granted minority status
- Jamia Millia Islamia
- 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 Jamia Millia Islamia 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
Constitutional Provisions regarding Minority Educational Institutions:
Article 30(1) recognizes linguistic and religious minorities but not those based on race, ethnicity. It recognizes the right of religious and linguistic minorities to establish and administer educational institutions, in effect recognizing the role educational institutions play in preserving distinct culture. A majority community can also establish and administer educational institution but they will not enjoy special rights under Article 30(1)(a).
Special rights enjoyed by religious minority institutions are:
- Under Art 30(1)(a), MEI enjoy right to education as a Fundamental Right. In case the property is taken over by state, due compensation to be provided to establish institutions elsewhere
- Under Article 15(5), MEIs are not considered for reservation
- Under Right to Education Act, MEI not required to provide admission to children in the age group of 6-14 years upto 25% of enrolment reserved for economically backward section of society
- In St Stephens vs Delhi University case, 1992, SC ruled that MEIs can have 50% seats reserved for minorities
- In TMA Pai & others vs State of Karnataka & others 2002 case, SC ruled that MEIs can have separate admission process which is fair, transparent and merit based. They can also separate fee structure but should not charge capitation fee
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
Stand of the government:
- Centre argues that conferring minority status to AMU or any institution set up by a parliamentary enactment or state enactment would be contrary to Article 15 of the Constitution, which prohibits discrimination by state on grounds of religion
- Centre also states that minority status to AMU and Jamia Millia Islamia universities is “unconstitutional” and“illegal” since these two government-run institutions were discriminating against Scheduled Castes, Scheduled Tribes and Other Backward Classes by using the minority tag
Analysis of Supreme Court’s Judgement:
- The Supreme Court in Azeez Basha case has held that the term “educational institution” does include a “university”
- It also observed that the minority have the choice to choose a central university with some governmental supervision, and whose degrees are recognized at par with degrees of other universities
- The Supreme Court in the 1967 case has also not ruled out possibility of a central university being a minority institution. It merely said that from the provisions of the AMU Act, 1920, it is not clear that it is a minority institution. This is the heart of this case.
- Analysis of reasoning of the Supreme Court in Azeez Basha case simply means that a religious or linguistic minority is debarred from establishing a university inasmuch as a university can only be established either by an act of the Central or state legislature. This contradicts Azeez Basha’s own position that an educational institution, for the purpose of Article 30(1), includes a university as well.
- Confusion emanates from the blurring of the distinction between the words “establish” and “incorporate”. Founding a university afresh with all its buildings and other infrastructure is altogether different from merely incorporating or upgrading an existing functional institution. We should not overstate the role of the Central legislature and underplay the role of those who really founded the AMU. A sum of Rs 30 lakh was collected by Muslims in 1920 to constitute a permanent endowment to meet the recurring expenses of the proposed university.
Whether a secular state should establish a minority educational institution?
Arguments in favour:
- Constitutional Provisions:
- Article 30(1) confers the rights on religious and linguistic minorities to establish educational institutiuons. The SC in its judgement in Azeez Basha 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”.
- 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.
Justice A.P. Sen made a pertinent observation in Lilly Kurian vs Sr Lewina and others ,1978, “the protection of the minorities is an article of faith in the Constitution of India”. The constitution explicitly recognizes the right of minorities to establish and administer MEI. It is the duty of the government to ensure that the rights guaranteed to minorities are not turned into a teasing illusion and promise of unreality. These guarantees are essential in a democratic and pluralistic country like India.