The Hindu : Minority educational rights

Online edition of India's National Newspaper
Saturday, Nov 02, 2002

Opinion

Opinion - Editorials

Minority educational rights

THE SUPREME COURT appears to have struck a delicate balance in the minority educational institutions case by adopting a position aimed at harmonising constitutionally-sanctioned special minority rights, on the one hand, with the constitutional guarantee of non-discrimination on the other. While upholding the minority community's untrammelled right to establish and administer unaided educational institutions, the Court ruled that those institutions which received state aid could be subject to Government rules and regulations. The 11-judge Constitution Bench, which was hearing a batch of over 200 petitions, has delivered a complex and multifaceted judgment which (as anticipated) has laid down the definitions and redefined the scope of many of the provisions that relate to educational institutions and the manner in which they are set up and governed. The significance and the wide-ranging implications of the case were evident when the Court, at the time of reserving its verdict, had formulated 11 questions for its consideration. These included broad questions such as those about the meaning of the expression "minorities" in the context of Article 30 of the Constitution and also many specific ones which, when read together, had a direct bearing on the manner in which educational institutions are governed. Not every one of the 11 questions has been addressed (with the Court declining to answer a couple) but the overall judgment should help to clarify the doubts about the exact rights and privileges of minority educational institutions in the country.

The judgment insulates unaided minority educational institutions from possible interference from the relevant university or Government by making it clear that the latter is forbidden from meddling with the affairs of the former. The only concessions made are for the sake of transparency and excellence, with the Court demanding that such institutions are governed in an open manner and that they give merit due primacy in admission policy. While minority educational institutions that avail of Government aid do not lose their stamp or character, they come under the purview of state regulation. Such institutions are also obliged to admit a certain percentage of non-minority students in order to comply with the guarantee in Article 29 (2), which states that a citizen shall not be denied admission to state-aided educational institutions on the grounds of religion, race, caste or language. As for the percentage of non-minority students to be admitted in such institutions, the Court has left the issue open, permitting the relevant university or Government to decide this matter.

Those who hold the view that minority educational rights are absolute and are against any external regulation over state-aided educational institutions might be unhappy with the order. But it is important to recognise that, when read as a whole, the judgment upholds the rights of minorities to establish and run educational institutions even as it subjects those institutions falling under a certain category to additional state control. The judgment also overturns two previous Supreme Court verdicts that dealt with capitation fees in professional colleges and management quotas for student admissions. With respect to the former, the Court has lifted the regulation on fees to be charged by unaided institutions with the proviso that there should not be "profiteering". Given the pragmatic difficulty in distinguishing between "profiteering/capitation" and between generating a "reasonable surplus to augment facilities", it is possible that the Court's ruling will only encourage free professional colleges to charge whatever fees students are willing to pay. As for the decision to set aside 50 per cent of the seats in state-aided minority institutions to the management's discretion, the Court has affirmed the principle but left the exact percentage to be set aside to be calculated by keeping various factors in mind. The verdict gives State Governments the discretion on how to deal with aided minority educational institutions and it remains to be seen how they frame policies with respect to the judgment which is now the final judicial word on this sensitive subject.

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