The Hindu : Minority rights and education

Online edition of India's National Newspaper
Friday, Jan 10, 2003

Opinion

Opinion - Leader Page Articles

Minority rights and education

By N. R. Madhava Menon

The Supreme Court seems to be in favour of freeing minority educational institutions from government control excepting to maintain academic standards through prescribing qualifications for teachers and minimum eligibility for students.

AMONG THE many landmark decisions rendered by the Supreme Court in 2002, the minority educational institution judgment (T. M. A. Pai Foundation & Others v. State of Karnataka & Others 2002 (8) Scale I) stands out as the most significant in terms of its reach, complexity and potential for shaping the future of education in the country. The case which was pending in the apex court for nearly 10 years got transferred from a Bench of five judges to one of seven judges and finally to a 11-judge Bench as it involved a fundamental issue of determining who constituted a "minority" for availing the special right of minorities under Article 30(1) of the Constitution "to establish and administer educational institutions of their choice."

Minority implies "numerically less" and both linguistic and religious minorities are covered by this expression under Article 30. Since the States have been formed by grouping people on linguistic lines, the unit for determining a minority is not the whole of India, but the State in question. On this simple logic the court attempted to resolve the issue. It did not answer whether the followers of a sect or denomination of a particular religion can claim minority status even if the followers of that religion are in a majority in that State. Nor did it find it necessary to spell out the indicia for determining whether an educational institution is a "minority educational institution". These issues are now to be resolved by the State and/or by a regular Supreme Court Bench. There was unanimity among the 11 judges that the right given to religious and linguistic minorities under Article 30 (1) "to establish and administer educational institutions of their choice" includes professional educational institutions as well. The differences are in respect of the nature and scope of Government control over minority education institutions in the context of the non-discrimination principle under Article 29 (2) and the earlier law of right to education laid down in the Unnikrishnan Judgment (1993).

The Supreme Court seems to be in favour of freeing minority educational institutions from Government control excepting to maintain academic standards through prescribing qualifications for teachers and minimum eligibility for students. The court is emphatic in declaring that admission of students to unaided minority educational institutions cannot be regulated at all by a State or University if the procedure is transparent and merit-based. The right to admit students is part of the right to administer educational institutions.

An aided minority educational institution, however, would be required to admit a reasonable extent of non-minority students so that the rights under Article 30 (1) are substantially maintained while the citizens' rights under Article 29 (2) are not infringed. What would be a reasonable extent would vary depending upon the types of institutions, the courses of education for which admission is being sought, the educational needs of the minorities and similar factors. This (percentage of non-minority students) is for the State Government concerned to determine and notify. In the case of aided professional institutions it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission unless specifically exempted otherwise.

There is a certain amount of ambiguity in the law laid down in regard to the application of Article 29 (2) against aided minority educational institutions. On the one hand, the court does not want to water down the guarantees given by the Constitution to minorities; and on the other hand, it is reluctant to give up the non-discrimination doctrine of Article 29(2) whenever public funds are utilised to support educational institutions. Regarding the procedure and method of admission of students, are minority educational institutions totally free of Government/University control? Yes, provided the method employed is fair, transparent and merit-based. In the case of aided institutions the Government or the University can even ask for due consideration to be given to the weaker sections of society in the admission process.

The minority right to establish and administer educational institutions was so far governed by the law laid down in the famous St. Stephen's College case (1992), the principle of which the court found difficult to set aside. That judgment allowed full freedom to minority institutions provided 50 per cent seats were given to non-minority students. Now the Supreme Court found that keeping a rigid percentage is not desirable in law or in practice. The non-minority component should be reasonable having regard to the type of institution, population size and educational needs of the minorities. Again, there is scope for States to limit the exercise of minority rights which, judged by past experience, can be a constant source of irritation and conflict.

While the court recognises the charitable nature and service goals of education, it allows the authorities full freedom to collect fees and charges they find appropriate in unaided educational institutions, the only caveat being that they should not appear to be charging capitation fee for profiteering. Realising that education is increasingly being run as a business and that the cost of running it is escalating, the court conceded the need to have surplus income generated to meet the cost of expansion and augmentation of facilities. In the court's view this surplus will not be deemed "profiteering". This freedom from regulation in the matter of fees in the case of unaided educational institutions is what many critics of the judgment find as being violative of the spirit of equality, equity and excellence.

Apart from the freedom from regulation on the question of fees, private managements have reason to cheer insofar as the court has conceded their right to be free from governmental interference in disciplining employees through imposition of penalties for proven misconduct.

In a recent seminar, the principal of a reputed minority educational institution characterised the judgment to be potentially subversive of minority rights. He felt that the court in effect converted a constitutional guarantee into the domain of discretionary control of the Government of the day. He feared that the service element in education would be lost if every citizen had the right to establish and administer educational institutions with minimal or no regulation. When the court declared that non-minority students in aided minority educational institutions should be admitted on competitive merit through a State Government-conducted entrance test, the effect would be denial of access to weaker sections of society, according to him. Government bureaucracy being what it is, there is fear and frustration among managements of aided minority educational institutions.

It is difficult to agree completely with such an assessment of the judgment when looked at in the country as a whole. Yes, there are excellent minority educational institutions which have been rendering quality education at moderate costs before the capitation fee menace began warranting judicial intervention. The situation is different today because of the policy of liberalisation, politics of conversion, and the compulsions of democratic governance. Minority institutions which continue to administer educational institutions in the spirit of service (and not profiteering) have nothing to lose or fear from the judgment. If they are not seeking aid from the Government they are totally free from any control excepting the demands of natural justice and transparency. If they receive Government aid, the judgment asks the Government/University to exercise only the minimum regulations necessary to maintain standards and to provide some representation for non-minority students. One would argue that the educational scheme envisaged by the judgment deserves a fair trial before it can be condemned as elitist and anti-minority in character.

(The writer is Vice-Chancellor, WB National University of Juridical Sciences, Kolkata.)

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