The Hindu : Minority institutions and the state

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Saturday, Aug 10, 2002

Opinion

Opinion - Leader Page Articles

Minority institutions and the state

By Pratap Bhanu Mehta

Only adherence to clear and consistent principles can prevent a debilitating politicisation of secularism and protect the rights of minorities.

THE RELATIONSHIP between minority institutions and the state is a tangled web, made complicated in recent years by inconsistent judicial pronouncements that have eroded the rights of minority-run institutions in many cases, while arbitrarily privileging them in others. While the cases currently before it involve numerous complex issues, the Supreme Court ought to use them to clarify the fundamental principles at stake, even if individual cases remain more contentious.

In a pluralistic society like India, there ought to be no dispute over the fact that a wide range of minority institutions should flourish and be cherished. The state has a constitutional obligation to ensure that the rights of the minorities to freely create and administer their institutions are protected. The dispute is over the extent to which minority institutions can exempt themselves from state regulation, if they receive state aid in some form or the other.

A neat and simple solution to this conundrum would be to start with the presumption that any institution that does not receive state aid should be given the maximum latitude to administer its own affairs as much as possible.

This principle ought to apply to any institution, not just minority institutions. Similarly, a reverse presumption should apply in the cases of institutions receiving substantial state aid. The state has the right to regulate these institutions in the same way as it would regulate all otherwise similar institutions. It is the second presumption that is more controversial and has occasioned the argument between the Attorney-General, Soli Sorabjee, and the Solicitor-General, Harish Salve.

There are three grounds on which the second presumption is resisted. The first is that Indian secularism does not envisage as clear a separation between religion and the state and therefore the state can aid minority institutions even if the minority is defined in religious terms.

This argument, while it rightly describes the inordinately confused secularism of the Indian state, is weak in at least two respects. It seems to me that the only way a state can genuinely respect religion is by staying away from it as much as possible.

It is a gross caricature to conclude that because we supposedly believe in sarva dharma samanvay, it follows that it is justified for the state to get entangled with all religions. All that follows is that each has the freedom to practice their religion, not that the state should help them do it. Second, this argument underestimates the extent to which by getting involved with religion the state actually creates religious identities. The courts have constantly put themselves in the awkward position of defining which groups belong to which religion.

The courts have to constantly confront such questions as whether Ramkrishanites or Jains or some other sects are a minority. These questions are framed, not in terms of the organic growth and self-definition of various communities, but in terms of the state's compulsion to answer the question about which minorities deserve protection and which do not. So the court ends up begging the question who constitutes a minority. The state needs to protect the "minorities" without arbitrarily defining people's identities for them.

The second argument put forward is this. Many worry that since minority institutions will not be able to flourish without state aid, it would be absurd to argue that the state may legitimately regulate them if they receive state aid.

This would be, in effect, to starve minority institutions of much needed resources. This argument is somewhat overblown in two respects. First, if the history of the best minority institutions is any guide, quite the reverse is true. India has had a large range of flourishing minority institutions that did not receive substantial state aid. Indeed, it is arguable that receiving state aid has depleted the quality of many minority institutions, as it has of many other institutions, by politicising them.

Behind the thought that minority institutions cannot flourish without state aid is a gross misreading of our history and a rather indefensible statism which presumes, without argument, that minority institutions would be depleted without state aid. If anything, educational institutions are not flourishing because even those outside the ambit of the state are over-regulated. Second, the issue can be framed with more nuances. The Court can evolve guidelines that avoid two undesirable extremes. On the one hand, the state should not be allowed to alter the self-governing character of minority institutions if they receive some aid which many institutions inevitably will. On the other, there is something odd about the state not having the regulatory powers over minority institutions even when it funds up to or more than two-thirds of their budget. Why should, for example, a college that receives two-thirds of its budget from the state be exempt from affirmative action requirements, just because its management is in the hands of a "minority"?

The Court could strike a principled compromise by defining a financial threshold above which the state's regulatory powers kick in. Using a criterion of state dependency for determining whether the state can regulate an institution avoids two jurisprudential absurdities. The courts have often essentialised the functions of minority institutions, by operating under preconceptions of what a minority institution is supposed to do.

It has then used this preconception to attenuate the minority status of some institutions. On the other hand, it has consistently defined the identities of various groups for them by arrogating to itself the power of defining who is a minority and who is not.

A simple criteria that says, for example, that any institution that receives more than half of its budget from the state cannot claim exemptions from the relevant state regulation will help the state avoid the mess that comes from defining identities.

The third argument, less explicitly mentioned, is the legitimate fear that opening the door to state regulation will leave open the door to the ominous agenda of the Sangh Parivar. This fear is well founded. But this is a threat all state institutions are facing. Exempting state-aided minority institutions from regulation will politically only exacerbate rather than diminish this threat. The correct conclusion to draw from this fear is that we cannot have our cake and eat it too. Institutions cannot continue to rely on the Government and expect at the same time that the Government will not impose its power on them. Minority institutions will make themselves less vulnerable if they rely on the state less; and they will be better protected if the state gets out of the business of defining their identities altogether.

The Supreme Court should set the relationship between the state and minority institutions on a more consistent basis.

The only defensible way to do this is to afford institutions the maximum protection when they draw upon their own resources, but not exempt them from reasonable state regulation that would otherwise apply to these institutions when they rely too much on the resources of the state. Only adherence to clear and consistent principles can prevent a debilitating politicisation of secularism and protect the rights of minorities.

(The writer is Professor of Philosophy and of Law and Governance, JNU.)

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