Author: MG Vaidya
Publication: The Pioneer
Date: May 3, 2002
It is good that the Supreme Court's
11-member Bench has started a process of deciding the rights of minority
communities to establish and administer educational institutions of their
choice. The matter was long pending before the court and no decision was
forthcoming, which resulted in a number of groups that are generally considered
to be part of Hindu society, claiming the status of a minority in a particular
State which would immunise them from the Government laws and restrictions.
Ramkrishna Mission in West Bengal and the Lingayats in Karnataka are pertinent
examples; there might be many more. Why are these groups claiming for themselves
the minority character? Obviously there are extraordinary advantages bestowed
on the minority communities by our Constitution.
The words of Article 30(1) are simple
and apparently innocuous. It says, "All minorities whether based on religion
or language, shall have the right to establish and administer their educational
institutions of their choice." On the face of it, most innocent words!
But they are not so. Why? Because there was no necessity to incorporate
this Article in our Constitution and yet the article is incorporated, and
therefore it has assumed an enhanced significance. Is there any Article
in the Constitution that restrains minority communities from establishing
and administrating their educational institutions? No, on the contrary,
articles 15, 16 and 19 declare unequivocally that there will be no discrimination
in any field on the basis of religion or language.
On this background of there not
being any restraining clauses, the specific incorporation of article 30(1)
has given minority communities unrestricted scope to establish and administer
their educational institutions in a manner that the Government has no power
to monitor, supervise or legislate on them. The first Communist Government
in Kerala in 1950s tried to put some Government control on all educational
institutions in the State, but the managers of Christians institutions
frustrated the government attempt under the cover of this article 30(1).
From that time onwards, many cases
are pending before the Supreme Court. This newly-constituted 11-member
Bench, should, apart from the particularity of the cases pending before
them should also consider the following general points.
One, According to Article 30(1),
the basis on which a minority character of a group is established, is religion.
(No major administrative or legal problems were created by linguistic minorities.
Therefore, I am keeping them out, as far as this article is concerned.)
Therefore, should not this special right be limited to such institutions
of minority communities that impart religions teachings? Why should institutions
that impart secular education be recognised for a special treatment? Just
because they were established by minority groups?
Two, When majority of the students
admitted to an institution established and administered by minority groups
do not belong to that minority group, then why should it be called a minority
institution? For bestowing minority character on any institution, can it
be laid down that, that institutions shall admit only students belonging
to the community which runs that institution?
And then there is another Article,
that is, Article 30 (1A). It discriminates between even the land or buildings
belonging to a minority community and the majority community. It states:
"In making any law providing for 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 the clause."
Now the land or building is a material
property, built with bricks, iron, wood, etc. Is it fair to give a fundamental
right to the minority community only to challenge the compensation? Is
the presumption that the minorities will not be given fair compensation
in the event of acquiring their property just and fair? Government laws
can be good or bad; can they be good for one community and bad for the
other?
Though not connected with the articles
in the Constitution, I want to bring to the notice of the learned judges
of the Bench that even for declaring a person below the poverty line, there
are discriminatory criteria. A family belonging to a religious minority
community will be regarded below poverty line if its income is less than
Rs 7,500, but for a family of the majority community the border line for
deciding poverty is Rs 4,000. Even the rates of interest on loans are different
for majority and minority communities. Is the Government strategy aimed
at destroying the majority? Will it be wrong to say that not only is this
discrimination unfair and unjust, but it has resulted in perpetuating the
majority-minority divide with all the resultant unhealthy consequences?
I am in the know of a petition -
I don't know whether it is before the Supreme Court or the High Court -
wherein it has been challenged the very basis of Article 30. The petition
is reported to have emphasised that Article 30 itself is infructuous, because
there are no minority religions in our country! One more point. Cannot
the Human Rights Commission take care of all such rights? Freedom of religion,
equality before law, right to property, freedom to choose one's occupation,
etc., are all such rights as are common to all citizens. Why make a discrimination
between one community and the other? The verdict of the 11-member bench
of the Apex Court is expected to address all these anomalies.
(The writer is spokesperson of the
RSS)
