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Division of the people more disastrous than Partition-(Part II of II)

Division of the people more disastrous than Partition-(Part II of II)

Author: Dr. M. Rama Jois
Publication: Organiser
Date: October 14, 2007
URL: http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=205&page=32

Not special rights, equal rights

The essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another.

As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country.

Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by minorities at a disadvantage when compared to the institution run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination.

In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. [Para 138].

This aspect was highlighted in the judgment of Justices Variava and Ashok Bhan thus:-

"We should give to Article 30(1) a meaning which would further the basic and overriding principles of our Constitution viz. equality and secularism. The interpretation must not be one which would create a further divide between citizen and citizen." [Para 425]

The above clear interpretation by an eleven-judge bench of the Supreme Court is in conformity with Article 14, which confers fundamental right to equality on all citizens and Article 15(1) which prohibits any discrimination on the ground of religion or language etc., and is also consistent with the provisions of secularism and equality which constitute the basic structure of the Constitution and further it is also consistent with the principles of justice and fraternity which are also objectives set out in the Preamble to the Constitution. The law laid down by the eleven-judge bench is the law for the whole nation in view of Article 141 of the Constitution. This landmark judgment should have brought an end to vote bank politics. But in utter disregard of the Constitution and the Supreme Court judgment, the present ruling government who claims to be secular; which demand equal treatment to all religions without any discrimination, is enacting laws abusing the legislative power for implementation of vote bank politics in the following manner:

Special right to affiliation to minority institutions: National Commission for Minority Educational Institutions Act, 2004, which is applicable only to minority institutions and not to non-minority institutions. The startling provision incorporated as Section 10-A of the Act is that the minority educational institutions have the right to seek affiliation to any university of its choice among the universities mentioned in the Schedule to that Act. Whereas no such benefit is available to non-minority educational institutions.

Reservation for OBCs only in non-minority institutions: The second provision made by the Parliament is Constitution 93rd amendment Act by which clause (5) was introduced into Article 15. In that clause for the first time a provision was made for reservation in favour of OBCs only in non-minority private unaided professional colleges. If reservation in favour of OBCs is permissible and is in the interest of the nation, it should be so in all private unaided colleges. But according to clause (5) reservation in favour of OBCs is permissible only in non-minority unaided colleges and not in minority unaided colleges.

The two legislations are ex-facie unconstitutional and have been enacted in the teeth of 11-judge bench decision in para 138 of the TMA Pai's case, knowing fully well that the said provisions are patently and overtly violative of law declared by the Supreme Court. Still the said provisions have been enacted in furtherance of the policy of the minority appeasement and the Constitution is subordinated to the 'divide-and-rule' policy of political parties concerned.

Further, as equality, social justice and feeling of fraternity constitute the basic structure of the Constitution, the aforesaid two laws are violative of basic structure of the Constitution and the noble principles set out in the Preamble of the Constitution and therefore injurious to national interest.

By such policy, the ruling party has created and is continuing to create ill-will between Hindus and Muslims as the ill-will between them is their electoral capital. Accordingly, separate priority in budget for Muslims, separate quota for Muslims in education and employment, special provisions for giving bank loans, subsidy of more than two hundred and fifty crores of rupees for Haj pilgrimage etc., are being made in furtherance of divisive politics. Ordering counting of number of Muslims even in judiciary and defence forces is another dangerous step that has been taken. This is nothing but a 'split India movement'. Through such policy they are destroying the feeling of fraternity among all the citizens of the country which is the basic strength of our nation and causing breach in the fort of the people. Many among Muslims feel embarrassed by such measures as such steps are destructive of fraternity and national unity.

But the tragedy is that nationalist forces and nationalist-minded individuals on account of internecine quarrels and/or their personal agenda, ill-will towards each other and ego are pulling in different directions knowing fully well the dangerous trend which is threatening the unity and integrity of the nation.

On account of suicidal policy of dividing the nation as explained above, a situation graver than the one created in 1975 when democracy was attempted to be killed by abusing the power given under the Constitution itself has arisen. Then all democratic forces joined together and successfully fought against such fake emergency and saved the nation and the Constitution. Now unity of people is being destroyed also by abusing the legislative and executive power under the Constitution which is more dangerous than partition and the emergency in 1975. Nation can be saved only by patriotic and nationalist parties and individuals coming together and putting up a fight and defeat the divisive forces.

The nation celebrated Shri Guruji's birth centenary for one year. The message of national unity and social harmony was given top priority during the year-long programme. Shri Guruji always insisted on unity and personal and national character and unadulterated loyalty to the nation and equal treatment to all and was against division of the nation on communal basis as minority and majority. He always warned that no one should on account of his acts of commission or omission fail in his duty to protect the unity and integrity of the nation. This must be realised by all those who have secured good samskara of patriotism. All of them should keep aside all their personal agenda or differences and egos and come together to make the fort of the people formidable. This is the most important national duty which should be discharged by all of them. Failure to do so would be an act of great disservice to the nation.

Shri Guruji always used to say: "It is never too late to mend." Let us now stand united and fight against the policy of division of the people and to ensure the end of it.

(The writer is former Chief Justice of Punjab & Haryana High Court and former Governor of Jharkhand and Bihar.)

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