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AMU Minority issue : must read Anwar Khursheed's writeUP

The recent turn about by the Central government on Minority status of AMU on the right of minorities to establish the education institutions, has prompted me to pen down my views as well. It is needless to say that the constitution of India embodied special rights to both linguistic and religious minorities “to establish and administer educational institutions of their choice” under Article 30.
Prior to definition of a university u/s 2(f) of UGC Act of 1956 that “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, the Encyclopædia Britannica’s definition that  a university is an institution of higher education and research which grants academic degrees in a variety of subjects and provides both undergraduate education and postgraduate education. The word "university" is derived from the Latin universitas magistrorum et scholarium, which roughly means "community of teachers and scholars. Article 30(1) existed much prior to UGC Act obviously took Institution and University synonymously. Moreover, section 3 of the same UGC Act provides declaration of any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2 of UGC Act and subsequent upgradation of the deemed university to a full fledged university by an act of parliament  subject to conforming UGC norms.
The Supreme Court has time and again, in numerous judgments ruled in favour of minorities’ institution Kerala Education Bill case, Ahmedabad St. Xaviers College v. State of Gujarat, State of Kerala v. Mother Provincial, TMA Pai case, St Xavier’s College case constitute a long list.
Supreme Court in Guru Nanak University case (D.A.V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737). In that case, the Supreme Court rejected the contention of the state of Punjab that a religious or linguistic minority should be a minority in relation to the entire population of India. The Court has ruled that a minority has to be determined, in relation to the particular legislation which is sought to be impugned. If it is a state law, the minorities have to be determined in relation to the state population. The Hindus in Punjab constitute a religious minority. Therefore, Arya Samajistis in Punjab also constitute a religious minority. The Supreme Court didn’t ruled that minorities has no right to establish a university rather the contention was that Arya Samaj community is a minority community. Owing same reason the educational institutions in Kerala run by minority communities (based on whole country’s population); do not enjoy the minority status.
Managing Board, M.T.M v. State of Bihar, the Supreme Court has clarified that “There is, no doubt, no such thing as Fundamental Right to recognition by the state but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under article 30(1). We repeat that the legislative power is subject to the Fundamental Rights and the legislature cannot indirectly take away or abridge the Fundamental Rights which it could not do directly.”
By any stretch of imagination it is a utopian concept even in a secular state to provide equal status to minorities where one single religion consist of80% of population. Muslims are the most deprived amongst all minorities, their Literacy rate is lowest, and poverty rate is highest leading to deprivation of jobs. In urban areas, 60% of the Muslims have never gone to schools as against the national average of 20%. Only 5%of Muslim women have completed high school education and the income of the average Muslim is 11 % less than the national average. For all practical purposes all the Universities serve the purpose of furtherance of educational need of majority community though they are open to all.
An essential facet of Article 30(1) is to provide safeguard by incorporating special privileges to religious and lingual minorities. But the real question is does this safeguard is sufficient until Muslims will not be educated through a special derive as government is doing for SC/ST. Now if minorities can’t establish Universities than the entire claims of safeguard of educational and cultural rights of minorities are farcical.
Against this backdrop such views restricting institution not synonymous to University contravenes the basic structure of the constitution as it discriminate against such minorities. The Supreme Court in the St Xavier’s College case, has rightly pointed out that, “The whole object of conferring the right on the minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.
The views expressed by GOI amounts to argument for reverse discrimination and the same is endorsed by the Supreme Court has, in the TMA Pai case that “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”( T.M.A Pai Foundation v. State of Karnataka, AIR 1994 SC 13).
The status of development of countries is not the economic and military strength rather it is their treatment with the minorities which counts a lot and any change in the opinion of GOI is regressive for this great country, which explicitly recognises the rights of ethnic, religious, or linguistic minorities under  Article 27 of the International Covenant on Civil and Political Rights. Noted journalist A.G. Noorani in an article rightly wrote that “International guarantees, though helpful, are not enough. It is the country’s ethos that matters. Judges reflect it. In 1958, the Chief Justice of India, S. R. Das, said in the Kerala Education Bill case: “So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own.”
Referring to the Aligarh Muslim University case (S. Azeez Basha v. Union of India, AIR 1968 SC 662), H.M. Seervai remarked that “this is the first case in which the Supreme Court has departed from the broad spirit in which it had decided cases on cultural and educational rights of minorities which was reflected in the words of Das C. J.”. The “first case” was followed by not a few in which the court whittled down Article 30. In the AMU case, it ruled, incredibly, that “the university was not established by Muslims”.
In one of my article I expressed that the denial of the historical reality of AMU as a minority institution by Azeez Basha case is same as denial of credit of the Independence of this great country to our freedom fighters; on the pretext that the independent India was brought into existence by the Indian Independence Act passed on 18 July 1947 and the real heroes were the then British Prime Minister Clement Attlee and Lord Mountbatten.
The case is now again under the consideration of Constitution bench of Supreme Court and now a judicious view in favour of minorities is expected. The reason of our optimism lies in the liberal and unbiased interpretation of minorities’ related provision by the Supreme Court.
On February 13, 1988, Rashtriya Swayamsewak Sangh (RSS) chief Balasaheb Deoras said that Article 30 should be extended to Hindus also. Does one need to say any further on this matter, what will then be the purpose left for article 30 if minority and majority will be no different. Secondly, this demand establishes the fact that Minority Education has a substance. Our optimism lies on slogan of Prime Minister Sri Narendra Modi “Sabka saath sabka vikas.
Cases referred –
[1] B.F Skinner, New Scientist, May 21, 1964
[2] http://www.eurac.edu/Press/Publications/Monographs/0059701.htm
[3] Ahemdabad St. Xavier’s College v. State of Guajrat, AIR 1974 SC 1389
[4] T.M.A Pai Foundation v. State of Karnataka, AIR 1994 SC 13
[5] http://pd.cpim.org/2004/1226/12262004_ragesh.htm
[6] Ahemdabad St. Xavier’s College v. State of Guajrat, AIR 1974 SC 1389
[7] AIR 1958 SC 956
[8] D.A.V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737.
[9] D.A.V College, supra, note 23, at 1744
[10] ILI, Educational Planning (1967)
[11] A.S.E Trust v. Director, Education, Delhi Adm., AIR 1976 Del 207
[12] Manager, St. Thomas U.P School, Kerala v. Commr. and Secy. to General Education Dept., AIR 2002 SC 756.
[13] S. Azeez Basha v. Union of India, AIR 1968 SC 662.
[14] AIR 1983 SC 1.
[15] AIR 1986 SC 1490.
[16] AIR 1970 SC 2079.
[17] AIR 1974 SC 1389.
[18] AIR 1958 SC 956.
[19] AIR 1984 SC 1757.
[20] AIR 1974 SC 1389.
[21] Ibid.
[22] AIR 1992 SC 83.
[23] T.M.A. Pai Foundation & others v. State of Karnataka, (1995) 5 SCC 220.
[24] AIR 1971 SC 1731.
[25] www.hinduonnet.com/2002/12/17/stories/2002121700891000.htm - 20k -
[26] http://pd.cpim.org/2004/1226/12262004_ragesh.htm
[27] http://www.eurac.edu/Press/Publications/Monographs/0059701.htm
[28] http://www.sabrang.com/cc/archive/2005/sep05/edu3.html - 14
[29] Ahemdabad St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389.
[30] ASE Trust v. Director Education, Delhi Adm., AIR 1976 Del 207.
[31] Azeez Basha v. Union of India, AIR 1968 SC 662.
[32] D.A.V College Jullundher v. State of Punjab, AIR 1971 SC 1737
[33] In Re The Kerala Education Bill, AIR 1958 SC 956.
[34] Managing Board, M.T.M v. State of Bihar, AIR 1984 SC 1757.
[35] Manager, St. Thomas U.P. Schoool Kerala v. Commr. And Secy. to General Education dept., AIR 2002 SC 756.
[36] State of Kerala v. Mother Provisional, AIR 1970 Sc 2079.
[37] St. Stephens College v. University of Delhi, AIR 1992 SC 83.
[38] T.M.A PIA Foundation v. State of Karnataka, AIR 1994 SC 13

Anwar Khursheed

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