OPINIONS | June 30, 2019:

By Prof Batskhem Myrboh

Being committed to the ideal of pluralism of the Indian society, the framers of the Indian Constitution of India were conscious of the need for the protection of the rights and privileges of the minority communities. Accordingly, the Constitution of India under Article 30 provides for the right of minorities to establish and administer educational institutions. According to Clause (1) of Article 30, “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.” In Clause (2) of the same Article it is provided, “The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

In spite of the existence of the above provisions, nowhere in the Constitution was the term “minority” defined. It was in 1992 that the term minority was defined officially by section 2(c) of The National Commission for Minority Act, 1992 (NCMA) wherein it is stated “Minority for the purposes of this Act, means a community notified as such by the Central Government;”. To give effect to the above provision of the NCMA and in exercise of the powers conferred by it, the Central Government notified Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as “the Minority communities” for the purposes of the said Act vide notification SO No. 818 (E), F.No. l/ 11 /93-MC (1)) dated 23.10.1993.

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In early 2005, the Indian Parliament enacted the National Commission for Minority Educational Institutions Act, 2004 (NCMEI Act) which provides for the establishment of the National Commission for Minority Educational Institutions (NCMEI). One of the functions of the NCMEI, according to section 11(f) of the NCMEI Act, is to “decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;” However, while determining the status of any institutions as a Minority Educational Institution, the Commission is guided by Section 2(g) of the NCMEI Act as it defines a Minority Educational Institution. Section 2(g) states “Minority Educational Institution means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities”

Para 3 of the Guidelines for determination of Minority Status, Recognition, Affiliation and related matters in respect of Minority Educational Institutions under the Constitution of India states, “It has been held by the Eleven Judges Bench of the Supreme Court in T.M.A. Pai Foundation vs. State of Karnataka (2002) 8 SCC 481 that a minority, whether linguistic or religious, is determinable only by reference to demography of the State and not by taking into consideration the population of the country as a whole. The application of numerical test with reference to religion in states like Punjab, Jammu & Kashmir and Nagaland makes Sikhism, Islam and Christianity, the majority religions in those states respectively.” When Christianity is a majority religion in Nagaland, the same is the case with Meghalaya. The percentage of Christian population since 1981 has always been more than 50 percent of the total population of the State of Meghalaya and it shows an increasing trend with each census. The population increased from 52.62 percent in 1981 to 70.25 percent in 2001 and 74.59 percent in 2011 census. On the basis of the notification of the Central Government dated 23.10.1993 and the ruling of the Supreme Court in the T.M.A. Pai Foundation vs. State of Karnataka (2002), we can deduce that Muslims, Sikhs, Buddhist and Zoroastrians (Parsis) who constitute 4.40 percent, 0.10 percent, 0.33 percent and 0.02 percent of the total population of the state remain as minority communities of Meghalaya.

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Since Christianity is a majority religion in Meghalaya and that to determine the minority status of educational institution, state population is used as a unit for consideration, by no stretch of imagination the Christian run educational institutions can be given the status of Minority Educational Institutions (MEI). Interestingly, the Christian run educational institutions has consistently claim and recognised by the State Government as minority as MEI even post Supreme Court ruling in the T.M.A. Pai Foundation vs. State of Karnataka (2002). However, a contradiction has emerged in the State in so far as the Government aided Christian run institutions are concerned. While on the one hand they are recognised by the State Government as MEI, yet on the other, the State imposes its job reservation policy on such institutions which goes against the right of MEI. It has been held by the Supreme Court in Case of P.A. Inamdar Vs. State of Maharashtra [2006 (6) SCC 537] that the policy of reservation in admission and employment cannot be made applicable to a minority institution.

When this author filed application for information under RTI Act, 2005 to Directorate of Higher and Technical Education of Meghalaya to provide the list/names of colleges in Meghalaya that have been notified by the appropriate authority as minority institutions, the same application was forwarded to the Principals/PIO of all deficit colleges with a request to provide the information directly to the applicant. While replying to the RTI application forwarded to them, some Principals of Christian run institutions chose to remain silent or reply that no such list/names of colleges has been notified to be minority and others claim to be minority institutions but produce irrelevant certification. However, later I managed to unofficially receive a copy of the certificate obtained by St. Edmunds’ College which is one of the oldest and premier Colleges run by an organisation belonging to majority Christian community from the NCMEI dated June 7, 2007. It may be reminded that the Principal of St. Edmund’s College, Shillong chose to ignore my request for information on minority issue contained in the RTI application mentioned above. As per this certificate, St. Edmund’s College managed to obtain certification of being MEI within the meaning of Section 2 (g) of the NCMEI Act, 2004 “ON THE BASIS OF THE CONCESSION MADE BY THE STATE GOVERNMENT….” Besides, St. Edmunds’ College there could be other Christian run educational institutions in the state which could have obtained such certificate from NCMEI on the same basis.

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But many questions remain to be answered. First, whether Christian run institutions in Meghalaya such as St. Edmunds’ managed to obtain certification on the basis of facts that they are minority institutions fulfilling the guidelines made by the NCMEI or simply on the basis of concession made by the State Government? Second, under what provision of law can the State Government make concession for recognition of Christian run institution(s) in contravention to Supreme Court ruling in the T.M.A. Pai Foundation vs. State of Karnataka (2002) OR whether such concession is not at all in violation of the Supreme Court ruling? Third, whether the Supreme Court ruling in the T.M.A. Pai Foundation vs. State of Karnataka (2002) is not valid any longer at the time of concession made the State Government recognising institutions run by members of Christian majority community as MEI? Fourth, whether NCMEI is bound by the concession of the State Government even if it goes against law? Fifth, why the Christian run institutions do not challenge the State Government’s imposition of job reservation policy if they were recognised as MEI on the basis of legal facts? Sixth, has the State Government lost its autonomy but become subservient to parochial forces having financial, numerical and electoral clout? Seventh, why those institutions claiming to be MEI were interested to hide the relevant certificate when the RTI was filed?

The above questions require further investigation, research and legal testing in the court of law to establish the factual position of Christian run educational institutions in Meghalaya.

Batskhem Myrboh is an Assistant Professor, Political Science in Synod College, Shillong. He can be contacted at bmyrboh2018@gmail.com

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