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Define minorities correctly - The Indian Express

Krishan Mahajan ()
24 February 1997

Title : Define minorities correctly
Author : Krishan Mahajan
Publication : The Indian Express
Date : February 24, 1997

The meaning to be given to the fundamental right of religious and
linguistic minorities to have educational institutions of their
choice is now before an 11-judge bench of the apex court. It is a
political issue with a troublesome and emotive history on which the
court is asked to deliberate. Under the Constitution the
pronouncement of the court will be legally binding on all Indians.
The vital issue will be the approach of the judges. An approach
of reading Art 30 all alone can rum religion and language into such
divisive sources that there is nothing left of what the
Constitution calls India or Indians. The approach of a harmonious
reading of Art. 30 in the scheme of the Constitution can give a
chance for the creation of an Indian brotherhood of 1,000 million
based on equality of opportunity. Unfortunately none of the
Supreme Court majority judgements in benches of five or more has
adopted this universally recognised canon of construction.

Within fundamental rights the Supreme Court has erected a set of
'basic structure' rights which no ruling politician can take away
by legislation. These have become pre-eminent fundamental rights
providing a common protection to all citizens. One of these is the
concept of secularism. Hence the ordinary fundamental right of
Art. 30 has to be interpreted subject to the constitutional concept
of secularism. Sadly none of the Supreme Court judgements on Art.
30 has done this.

This concept affords a common protection to all Indians if judicial
notice is taken of the fact that in reality there is nothing like a
majority community in India. Linguistically every Indian is in a
minority in another state where his language is not spoken. That
by itself breaks up the so called Hindu majority even in terms of
its temples and ceremonies. Further Hindu religion as such is not
a monolithic religion which advocates either social ostracisation
or violence against any non-believer. here being no majority and
only minorities in India Art. 30 belongs to all Indian citizens who
find themselves numerically in small numbers in a state vis a vis
their religion or language. Given this numerical definition of
minority which makes Art. 30 available to all Indians in various
parts of India, no educational institution can continue to claim
minority status if the preponderant numbers therein are not from
the numerical minority. This explains why Art. 29 carries the note
"Protection of Interests of Minorities," while giving the
fundamental right to preserve language scrip and culture to "any
section of citizens."

Concerning their religion all Indians regardless of Art. 30 have
been given protection of belief, faith and worship extending to
freedom of conscience by the fundamental right in Art. 25 of the
Constitution. The fundamental right of Art. 25 is subject to
public order, health, morality and other fundamental rights. The
religious rights of all Indian citizens are more specifically
guaranteed by Art. 26 of the Constitution and these are also
subject to public order, health and morality. The net result is
that the secular concept of the Constitution make all religions
subject to the requirements of public order, health and morality.
This secular aspect is further made clear by Article 25(2)(a) which
permits regulation or restriction of any economic, financial,
political or other secular activity which may be associated with
religious practice. But there is yet to be a judgement on Art. 30
which examines its place in the context of the secular frame given
in Arts. 25-28.

Having defined the legal place of all religions in India the
question arises about the place of education. If all Indians are
religious or linguistic minorities in one or the other part of
India then all Indians are equally subject to legal regulation of
the secular activity of education which may be associated with
religious practice. Well, then what is left of the fundamental
right under Art. 30? The answer is institutions of theology, or
those for preservation of ethnic identity, research and teaching
only of a particular language or culture.

This requires judicial notice of two facts. One, that the
historical evolution of rational, reformative education with a
scientific temper as a base for economic development has been that
of divorcing it from any religion. The right to primary education
declared as fundamental by a constitution bench of the Supreme
Court itself is a right available to all Indians, not to any
minority or majority. Modem fields of higher education have
everything to do with knowledge leadership and nothing with
anyone's religion or language. Two, that secular education is
linked to language and jobs. In terms of the doctrine of impact the
present interpretation of Art. 30 has produced an English speaking
ten per cent that rules 90 per cent citizens who do not speak
English. Ninety per cent are therefore denied equality of
opportunity from their childhood based on an interpretation of Art.
30 without taking Arts 348-351 about language into account.

Aright of minority institutions cannot be one that annihilates the
fundamental and basic right to equality and destroys nationhood by
creating amongst children a feeling of us and they. Surely such an
interpretation which enables politicians to make vote banks of
religion or language and combines it with corrupt finance that
commercialises education should not be adopted. Lawyers call this
the rule of preventing mischief.

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