The Bharatiya Shiksha Mandal(BSM) so called education wing of RSS wants a new definition for ‘Minority’ and ‘minority educational institution’.
They are planning to file a review petition in the Supreme Court to reconsider the definition of ‘minority’. It is because they say, the minorities are misusing its privileges and shying away from the implementation of RTE. They also content that these institutions have more general students than belonging to their own community. At present only the management is comprised of minority but they want the beneficiaries be from the minorities and it should be more than 50%. Only then they can claim the minority status. They demand a definition from Supreme Court for ‘minority institution’ that would emphasize the composition of students and not of the management as the criteria.
Outwardly their idea seems to be reasonable and appeasing even to the citizens of minority communities. One may appreciate their great concern for the children of minorities.
Is it that they want to help the children of minority community that they want a new definition for ‘minority’ is a big question. However one can infer from their contentions that all what they want is not a new definition but to bring all minority educational institutions in India under the purview of RTE. They also desire through any means either by a Constitutional amendment or Supreme Court order that the minorities should be deprived of their rights guaranteed under Article 30(1) of the Constitution of India.
Article 30(1) states, “ All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”. Special rights for minorities were enshrined in the Constitution to create equality and not to create inequality. It was for the preservation of the minority institutions that they were granted autonomy in the matter of the administration of those institutions. Therefore Justice Khanna of the Supreme Court said “The different treatment for the minorities by giving them special rights is intended to bring about an equilibrium so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in the genuine equality , equality not merely in theory but also in fact”.
The word “minority” is not defined in the Constitution. In TMA Pai Foundation vs. State of Karnataka (2002) 8SCC 481 it was held that the person or persons establishing an educational institution who belong to either religious or linguistic group who are less than fifty percent of total population of the State in which the educational institution is established would be linguistic or religious minorities. It has been settled by various decisions of the Supreme Court like Kerala Education Bill [1957 AIR 1958 SC 956], Rev.Sidhajbhai Sabhai vs State of Bombay[ (1963) 3SCR 37: AIR 1963 SC 540], Ahmedabad St.Xavier’s College Society vs.State of Gujarat [(1992) 1SCC 717(1975)1SCR 173], St.Stephen’s College vs University of Delhi [(1992) 1 SCC 558] that Article 30 of the Constitution conferred special rights on the minorities (linguistic or religious). The Court observed that though the Constitution does not define what is minority, it literally means “ a non-dominant’ group. It is a relative term and is referred to represent the smaller of two numbers, sections or group called “majority”.
Chief Justice Kirpal, speaking for the majority in Pai Foundation took a clue from the provisions of the States Re-organisation Act and held that in view of India having been divided into different linguistic States, carved out on the basis of the language of the majority of persons of that region, it is the State, and not the whole of India that shall have to be taken as the unit for determining a linguistic minority vis-à-vis Article 30 According to Section 2(g) of the National Commission for Minority Educational Institutions Act 2004 “Minority Educational institutions means a college or institution, a university (under amendment) established or maintained by a person or group of persons from amongst the minorities”
The Central Educational Institutions (Reservation in Admission) Act, 2006, defines a minority educational institution “means an institution established and administered by the minorities under clause (1) of article 30 of the Constitution and so declared by an Act of Parliament or by the Central Govt or declared by National Commission for Minority Educational Institutions In Azeez Basha vs. Union of India AIR 1968 SC 662, a Constitution Bench of the SC held that two requirements have to be fulfilled under Article 30(1) namely that the insti was established by the community and its administration was vested in the community.
This concept is fully supported by S.P.Mittal Vs Union of India [AIR 1983 SC 1] and St. Stephens College vs. University of Delhi [(1992) SCC558] In P.A.Inamdar vs. State of Maharashtra the Supreme Court reiterated the points in Kerala Edcuation Bill (1957, In re, 1959SCR 995SC 956 that the object underlying Article 30(1) is to see the desire of minorities being fulfilled that their children should be brought up properly and efficiently and acquire eligibility for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering public services.
Why Article 30(1):
Why article 30(1) was embodied in the Constitution has been set out by Chief Justice Ray in the case of Ahmedabad St.Xavier’s College Society v.State of Gujart (1974)1SCC717: (1975) 1SCR 173. The court held “ The right to establish and administer educational institutions of their choice has been conferred on religious and linguistic minorities so that the majority who can always have their rights by having proper legislation do not pass a legislation to prohibit minorities to establish and administer educational institutions of their choice”.
In the same case the Court held that the partition of India caused great anguish pain bitterness and distrust amongst the various communities residing in India. Initially there was a demand for separate electorate and reservation of seats. However the principle of unity and equality for all prevailed. In return it was agreed that minorities would be given special protection.
RTE and Minority Rights:
RSS wants the minority educational institutions to implement RTE. The Constitutional validity of the 2009 Act(RTE) was considered by a three-judge Bench of the Supreme Court in Society for Unaided Private Schools of Rajasthan v.Union of India &Anr (2012)6SCC102). Two of the three judges have held that 2009 Act to be constitutionally valid. But they have also held that 2009 Act is not applicable to unaided minority schools protected under Article 30(1) of the Constitution and the Act is applicable to aided minority educational institutions. This decision of the Court was challenged by various organizations.
The Supreme Court of India by a Constitutional Bench comprising the Chief Justice R.M.Lodha, Justices AK Patnaik, Sudhansu Jyoti Mukhopadhaya, Dipak Misra and Fakkir Mohammed Ibrahim Kalifulla, in a Writ petition © No. 416 of 2012, “Pramati Educational and Cultural Trust &Ors vs. Union of India &Ors” cleared the confusion over minority aided educational institutions regarding Section 12 of the Right to Education Act stating RTE is not applicable to minority educational institutions, aided and unaided.
On the applicability of the Right to Education Act to Minority Educational institutions the Bench said “ If the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) will be abrogated. Therefore, the 2009 Act, insofar as it is made applicable to minority schools referred to in clause (1) of Article 30 is ultra vires the Constitution”. Stating so the Court exempted Minority Educational institutions aided and unaided from the purview of RTE.
That the court further held “ We are thus of the view that the majority judgement of this Court in Society for Unaided Private Schools of Rajasthan v.Union of India &Ors (Supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct”. The matter was decided by the Court in a Writ Petition © No. 1081 filled on behalf of Muslim Minority Schools Managers’ Association. Thus the Court stated RTE does not apply to minority educational institutions.
However neither the Supreme Court judgements nor the interpretation of the Constitution shows the meaning of the minority educational institution vests upon the beneficiaries . If we go by the argument of the RSS that more than 50% of the beneficiaries should be from the minority community it will defeat the purpose of the provision Article 30(1) enshrined under the Constitution intended for the protection of minorities by the framers of the Constitution. The very term ‘minority’ indicates ‘fewer’ than the others. National Religious minorities are Muslims who form about 12% Christians around 2%, then Sikhs, Buddhists and Parsies. Minority includes linguistic minority also. In some states or some localities minority population is very less. Still socially committed members of the minority communities have established educational institutions to cater to the needs of the children of other community also. If go strictly by RSS contention, good number of schools established by minority community in India should be closed down. However RSS failed to understand it is the duty of the Government to educate the citizens and when they failed to do so in major part of our country, patriotic citizens of minority community stepped in to educate the citizens for better nation-building. State like Orissa where Christian population is very less may not run the institution further and a school in Pune which was established by a Christian Community for the benefit of Muslim girls about 95% are from Muslim community may not be able to run the same as its beneficiaries are not from the same community. RSS cannot deny the contribution of minorities in the field of literacy in our nation. Minorities’ contribution in this regard is undisputed.
The contentions of the RSS are unreasonable and arbitrary. It is violative of the rights of minorities enshrined under the Constitution. Therefore WE THE PEOPLE of India should protest against any movement in diluting the provisions of Article 30(1) of the Constitution
(Jessy Kurian is an advocate of the Supreme Court. She can be reached at firstname.lastname@example.org)