Simply put: Over the years, major questions on institutions of minority education

The government has decided it does not agree that Jamia is a ‘minority’ institution. Why has a constitutionally given right caused prolonged conflict? The Indian Express explains

Written by Seema Chishti | Updated: August 29, 2017 11:17 am
Jamia Millia Islamia, JMI, jamia, jamia minority institution, minority institution, minority education, Aligarh Muslim University, AMU, explained news After the NDA came to power, then Attorney General Mukul Rohatgi advised the HRD Ministry under Smriti Irani that it was entitled to change the government’s view — and take the stance that JMI is not a minority institution. (Source: Express Photo)

The government has decided it does not agree that Jamia is a ‘minority’ institution. Why has a constitutionally given right caused prolonged conflict? The Indian Express explains

The Indian Express reported earlier this month that the central government has decided to tell Delhi High Court that it does not back an order by the National Commission for Minority Educational Institutions (NCMEI) that had declared, six years ago, that Jamia Millia Islamia (JMI) is a religious minority institution.

NCMEI had, on February 22, 2011, said that “Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution” — an order that led JMI to scrap reservations for SC/ST and OBC students and set aside half the seats in each course for Muslims. After the order was challenged in court, the previous UPA government submitted an affidavit saying it “respects the declaration made by NCMEI”.

After the NDA came to power, then Attorney General Mukul Rohatgi advised the HRD Ministry under Smriti Irani that it was entitled to change the government’s view — and take the stance that JMI is not a minority institution. The Indian Express reported this development on January 15, 2016. The HRD Ministry is now set to file a fresh affidavit in the case, articulating this stand, it is learnt.

What are “minority institutions”? How are they different from other institutions? Where do minority institutions draw their legal sanctity, and what is their raison d’être? Why has this nomenclature been contested?

What is a minority educational institution?

A minority educational institution is one that has been set up by either a linguistic or a religious minority group, to keep alive and foster what it considers its unique and special features. This may be recalling its past, its history, its education, or its texts.

Does the Constitution provide for minority educational institutions?

The Constitution in the chapter of Fundamental Rights, Part III, explicitly provides for the right. Article 30, titled “Right of minorities to establish and administer educational institutions”, says:

“(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause

(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

Article 29, “Protection of interests of minorities”, says:

“(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

But isn’t there a conflict between the fundamental principle of equality and the special rights conferred on these groups by the Constitution?

Article 30(1) could seem to be in contradiction to Article 29(2), which says, “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.” While the Constitution goes well beyond just a formal notion of equality, the question does often arise whether it is an absolute right or one which is somewhat circumscribed.

So, has the fact that state-aided minority institutions cannot discriminate against any citizen, ever created a problem?

Yes, it has created problems and conflicts, and the matter goes to the courts regularly.

The 11-judge constitution Bench judgment in TMA Pai Foundation & Ors vs State Of Karnataka & Ors (2002) — which was about reading the right to establish and administer minority institutions versus Article 29(2) — made several points. The six-judge majority judgment, with another judge concurring through a separate judgment, laid down that minority status must be decided with reference to the state, and not nationally. The question of whether a group could claim minority status in a state even if they were the majority in that state, was not answered.

The judgment seemed to suggest that while the right of minorities to set up and establish institutions should be enjoyed fully, it would be subject to some regulation, especially if they were state-aided to any degree. In case of unaided institutions too, it sought to invoke larger principles which minority institutions ought to go by.

As most cases involving minority institutions become political, even strict legal positions sometimes get complicated. In the case of JMI, the NCMEI’s 2011 order impacted the OBC reservation policy for admissions, which had a series of consequences. Consecutive vice-chancellors and administrations of JMI have declined to come out clearly on whether they recognise the university as a minority institution.

Aligarh Muslim University (AMU), again, has been a political hot potato for long, and with governments dithering, the case has been in the courts for decades. The university argues that it was set up by Sir Syed Ahmed Khan principally for minority uplift, and must, therefore, be seen to have a minority character. JMI, ironically, was created almost as the anti-thesis to Aligarh, when a group of scholars “walked out” of the AMU campus to set up Jamia in Delhi in the nationalist tradition, under Mahatma Gandhi’s influence and patronage.

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