This article is a response to the article titled “Jamia and the Rationale Behind Special Rights for Minority Institutions” published by The Wire on the 22nd of August 2017, in which the author has attempted to justify, with several arguments, the need for special status for minority educational institutions. A response is especially important since the author is a well known thought leader on minority rights (Faizan Mustafa – Vice-Chancellor of NALSAR University of Law, Hyderabad and alumnus of Aligarh Muslim University).

The response will be for several of the claims and arguments made in the article. I will briefly quote or paraphrase the argument made, and then provide a counter response under each heading.

Intent of the Constitution makers

The article quotes the statements of Sardar Patel and G B Pant to claim that the makers of the Constitution always intended to bestow special privileges to minorities.

As part of the same deliberations (The Debates of the Constituent Assembly), while discussing about Article 29(2), Pandit Thakur Das Bhargava had this to say

“Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority”

“In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority”

When discussing about Article 30(1), Professor K T Shah introduced an amendment to add a sub-clause that read as follows

“Provided that no part of the expenditure in connection with such institutions shall fall upon or be defrayed from the public purse; and provided further that no such institution, nor the education and training given therein shall be recognised, unless it complies with the courses of instruction, standards of attainment, methods of education and training, equipment and other conditions laid down in the national system of education.”

The above sub-clause bounds the rights given under Article 30(1) to the conditions that would be laid down under a common national system of education.

It becomes clear from the above discussions and attempts in the Constituent Assembly that there were distinct voices in the house that wanted Equal, and not Special, rights to minorities with respect to educational institutions.

Substantive Equality

The author of the referenced article justifies the special rights to minorities using the reservation policy for under privileged communities.

“The authors of the constitution recognised that India needed ‘substantive equality’ and thus they made provisions for reservation in favour of weaker sections and special rights for the minorities”

A starting point for reading up on ‘substantive equality’ may be this wikipedia article. However, the concept of substantive equality is only suitable, if at all, in situations where distribution of resources or opportunities, such as seats, jobs and scholarships are involved. In other words, substantive equality can only be applied in zero-sum games. Due to the inherent advantage enjoyed by the majority, if ‘formal equality’ is used in distribution of resources, the minority may never get an opportunity to compete on equal terms and get their share. Hence in many countries, affirmative action, a form of substantive equality, is used.

For e.g. if there are only 100 seats in an institution, and if merit is the only criteria, then children belonging to the dalit castes (for e.g) whose families never had the opportunity to grow up in an ecosystem that enables children to crack entrance exams may never make the cutoff. In such situations, reasonable reservations under substantive equality does help to an extent.

However, the establishment and maintenance of educational institutions is a completely non-zero-sum game. It is no ones argument that allowing the majority to run institutions under the same rules and regulations is going to deny the ability to do so to minorities. Further, the field of educational institutions, though charitable, is still a competitive market. Under the non-zero-sum game theory, it is well recognized that if one of the parties involved is subjected to “restriction of alternatives”, then that party eventually is forced to go with the opposite party, to maximize payoff.

In the present case, by not specifying any explicit rights to the majority, subjecting them to a myriad of educational laws and rules, and at the same time exempting minorities from almost all of the laws, the State is effectively restricting alternatives to the majority community. In the long run, the majority community, in order to maximise its payoff (on factors such as fees, standards, teachers’ pay and so on) WILL have to go with minority institutions. This will have a devastating effect on majority institutions!!

(Do read up the link on non-zero-sum game theory linked above; It explains the threat to the majority perfectly)

State-wise classification of minorities

The article claims that there is nothing preventing Hindus from claiming and enjoying minority rights in states where they are in minority, such as Jammu Kashmir and Punjab.

“But we must remember that even Hindus have religious minority status in a few states and are fully entitled to all the privileges as linguistic minorities in the remaining states”

This is only theoretically correct.

In reality, all the privileges granted to religious minorities in India are governed by the NCM Act and the NCMEI Act (specific to educational institutions). Under both these Acts, the Government of Bharat has the power to notify religious communities as minorities. As it stands today, only 6 communities – Muslims, Christians, Jains, Buddhists, Sikhs and Parsis are designated as minorities by the GOI.

No one else, apart from these 6, can enjoy any minority rights anywhere in Bharat.

The author further quotes the Supreme Court judgement in “N. Ammad vs The Manager, Emjay High School” to support the contention that Hindus too can enjoy minority rights. The said judgement was delivered in 1998 when no Act existed that had the provision to declare institutions as minority. However, post the creation of NCMEI, every educational institution that wants to enjoy minority rights has to be certified as a minority by either a Competent Authority (CA) or the NCMEI. And both the CA and NCMEI are bound by the GOI’s notification that defines who a minority is.

History of minority rights in other countries

The article subsequently quotes several international laws and treaties to claim granting of ‘Special’ Rights to minorities is a long standing feature of International law.

“The idea of special rights for minorities is not new and dates back to the 19th century”

I quote below several of the laws cited by the author and then highlight the exact stance of those very laws on this issue.

a) Article 19 of the Austrian Constitutional Law (1867)

The exact text of Article 19 of the Austrian Constitutional Law (1867) is as below

“….All the languages used in the provinces are recognized by the State as having equal rights with regard to education, administration and public life”

Notice the phrase “equal rights” which places all communities on equal pedestal with regard to educational rights.

b) Hungary’s Act XLIV of 1868

The relevant text of Hungary’s Act XLIV of 1868 is quoted below

“The Act (Article 26.) further ensures that all citizens, communes and Churches of all nationalities shall be free in the future — as they were in the past too — to found primary, secondary and higher education institutes and associations, the language to be used by such institutes and associations to be determined by those responsible for

their foundation”

Here too, one can easily notice “all citizens….and…all nationalities” being given equal rights without any special privilege to any section of citizens.

c) Peace treaty between Allied and Associated Powers and Poland

The portion of the treaty related to minority rights, especially with respect to educational rights is produced below

“Art. 8. Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.”

Quite clearly the treaty actually grants equal, and NOT special, status to minorities.

d) Peace treaty between Allied and Associated Powers and Bulgaria (known as the Neuilly treaty)

A common format was used for treaties between Allied and Associated Powers and several countries such as Bulgaria, Albania and so on. The relevant portion of the treaty is produced below.

“Article 54: Bulgarian nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Bulgarian nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein”

From all the above treaties and Acts (referred to by the author himself), it is evidently clear that every single country grants *Equal* rights to minorities with regard to establishing educational institutions, and NOT special rights.

Rights under Article 19

The article then goes on to claim that the majority in India enjoy the same rights as Article 30(1) but under Article 19.

“Non-minorities too have a similar right under Article 19”

This is totally incorrect. Rights under Article 19(1)(g) are generic rights to practice any profession or occupation available to all citizens including minorities too. Of course, it does cover the right to open educational institutions but it is a much weaker right than that available to minorities under Article 30(1).

The rights under Article 19(1)(g) are subject to several restrictions, like for e.g. those under Article 19(6) where as those under Article 30(1) have no restrictions. The Supreme Court of Bharat also, on several occasions, has reinforced this facet of Article 19(1)(g). A couple of relevant portions from the 2014 Pramati judgement is sufficient to confirm this difference.

Reference to Article 19(1)(g) and Article 15(5)

“…Clause (5) in Article 15 of the Constitution, thus, vests a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19…”

Reference to Article 30(1)

“the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions”

The above snippets clearly show majority rights under Article 19(1)(g) being subject to restrictions under 19(6) and 15(5) while no such restrictions exist for Article 30(1).

Hence the comparison between the two is an attempt to draw a false equivalence.

Reservations in Private Majority Institutions

Next, the article claims private majority institutions like Amity, Bennett and others enjoy privileges equal to that of minority institutions.

“Private, unaided universities like Amity, Bennett or Ashoka are not at too much of a disadvantage. Like minority institutions, they too are exempt from the SC/ST/OBC reservations”

This, too, is incorrect.

Amity University comes under the ‘Maharashtra Act No XIII of 2014’ Act and is subject to the same reservation policy as other institutions. This condition is covered by Sections 6(2) and 35(3) of the Act. The University is also subject to other guidelines under the UGC Act.

Similarly, Bennett University is also subject to the Government’s reservation policy for private unaided Universities, as clearly mentioned in their website.

Miscellaneous

I am clubbing together a few other incorrect claims made in the article, in this common section.

The article claims JMI does not enjoy sufficient autonomy.

“In fact, universities like AMU and JMI hardly have any substantial autonomy as they receive funds from the government”

The truth is that JMI is a minority institution, as it stands today due to such recognition from NCMEI in 2011 and therefore enjoys all the rights and privileges that are available to it.

Next, the article claims that AMU was denied minority status due to it adopting standards and control procedures per Government rules.

“In AMU’s case, on this very basis, the Supreme Court denied the institution its minority character”

This is far from the truth. In “S. Azeez Basha And Anr vs Union Of India” the primary reason why AMU was denied minority recognition was because it was found to have not been established by the minority community.

The article also claims all minority institutions educate 50% non-minority students.

“Minorities invest their resources, properties and time and then educate 50% non-minorities in their institutions, yet we have problems with these institutions which are playing a major role in uplifting minorities”

Once again, this is incorrect. The rules of almost all states regarding admission of minority students is very clear. There is a minimum stipulation, which varies from 25% to 50%, from state to state. However, every institution is fully free to admit students of their own community even up to 100%. In fact, the very fact that even 25% stipulation per RTE Act has not been mandated for minority schools confirms this point.

Conclusion

Minority educational institutions enjoy a significant advantage in terms of rights and exemption from obligations and rules, none of which are available to majority institutions. In a non-zero-sum area such as educational institutions, such a privilege, coupled with a heavy regulatory regime for majority institutions, means minority institutions enjoy an unfair competitive advantage.

(This article first appeared on the author’s blog securecoreblog.wordpress.com and is being reproduced with his consent)

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