The government’s change of stance on whether Jamia Millia Islamia is a minority institution reminds us of one of the longest festering disputes in Indian constitutionalism. At the heart of the dispute is two visions of Indian constitutionalism that are articulated in relation to Article 30 (1), that gives religious and linguistic minorities the right to establish and administer educational institutions of their choice.
The core of the issue is whether this clause is meant as an anti-discriminatory and protective clause, to ensure that minority institutions are not discriminated against; or whether it confers upon minority institutions special privileges and a greater degree of autonomy that non-minority institutions do not enjoy. Every generation of the Indian Supreme Court, beginning with the benchmark Kerala Education Bill 1957 case down to the recent Pramati Educational And Cultural Trust Case, has replayed a version of this debate. But the net result has been more confusion than clarity.
A column has too little space to go into the legal intricacies of a particular case like Jamia. But the stakes in the constitutional issues around Article 30 (1) are high for a number of reasons. It will be politically tempting to communalise the debate over Article 30 (1), but that would be a mistake. But it is worth looking at the context beyond Jamia that makes the stakes in this debate high. The big backdrop to these cases is the deep mess we have created in the regulation of education, and higher education in particular. Education policies, from admissions to recruitment, are now among the most litigated areas in law. This is because education itself is overregulated and the intricate degree of control we seek to exercise over it creates all kinds of anomalies. Till T.M.A. Pai, the right to run and administer education institutions was not even recognised as a general right; and even after the recognition of that right, it is subject to so much regulation and interdiction that it is not clear what it amounts to. Under these circumstances, being granted minority status became like a prized regulatory possession.
Under the “special privileges” interpretation of Article 30 (1), minority education institutions were given a degree of autonomy that many non-minority institutions rightly envied. Since education is a high-stakes game, this also led to a process of greater minoritisation: More and more groups within states want to come under the ambit of minority institutions to claim these privileges. We actually don’t know the full extent of minoritisation of institutions because government data largely concentrates on whether schools are aided or unaided.
The differential regulatory burden imposed on minority and non-minority institutions varies from state to state depending on the private universities acts of those states. But the idea that there is a differential burden of regulation is broadly correct. This differential regulation affects even colleges within the same university, say SRCC and St. Stephen’s, over basic issues like what autonomy they should have over admissions. Differential burden itself would not be a problem if it were related to some clear principles.
Neither the financial character (whether an institution is aided or unaided), nor the educational purpose seems to matter with any degree of clarity. The courts rightly held that minority institutions can impart broad secular education. But it does create situations where institutions that are identical in purpose face differential regulation merely on account of who started it. In other words, differential regulation is no longer related to justice, or educational objectives, or protecting rights. It has become, in some instances, about merely giving an identity-based privilege. But it is important to remember this privilege is extended to a range of minorities within states, not just Muslims.
The framing of education regulation as rooted in identity-based privilege is reinforced in several ways. For instance, in the National Commission for Minority Educational Institutions Act, only minorities can be appointed to the Commission. There are not too many regulatory and quasi-judicial entities with these kind of extensive identity-based restrictions on membership. The Right to Education Act accentuated the problem of differential regulation. It exempted minority institutions from 25 per cent reservation for children from economically weaker sections.
If the objective of reservation was social integration, this exemption was even more anomalous. It again reinforced the perception that Article 30 (1) was really about giving special privileges, not about protecting minorities. Mahesh Giri has introduced a private members’ bill in Parliament to rectify this clause in the RTE.
The stakes in the debate over minority educational institutions cannot be fully understood unless we recognise that in the backdrop are two large issues in education: Over regulation and a projected sectarianism in state policy. Courts have been largely responsible for this mess, since they have never clearly articulated what a right of non-minorities to set up and administer an educational institution of their choice might look like. So the issue of the rights of minority institutions has become the wedge to open the debate on regulation more generally. But in this debate we are likely to see two forms of bad faith. The BJP will most likely focus on institutions like AMU and Jamia that can also be inserted into a communal narrative.
It will do little to clarify the broader regulatory regime. The BJP’s critics and the Congress will likely forget the fact that there is a genuine constitutional mess in the way in which the rights and identities of educational institutions have been conceptualised. We need to find a way of returning to first principles that asks under what conditions which kinds of institutions need special protection and for what purposes.
The stakes in these debates would be much lower if there were first a national consensus on the rights of educational institutions in general and it gave them the relevant freedoms. And if these rights were sensibly articulated, all kinds of institutions, including minority rights, would be protected. Minorities face special disadvantages, depending on the circumstances, and they have to be taken into account in making policy. But an Occam’s razor principle might be useful: First see if a minority right or interest is better protected if it can be articulated as application of a more general right that everyone has, rather than as a special exemption. The AMU and Jamia cases will be decided on the statutes that govern them. But the communal character of this debate will not be defused unless the question of the larger freedom to run educational institutions is settled.