Freedom of education faces a challenge

It could have been worse. This is how a legal luminary in Delhi reacted to the Supreme Court's judgement on the Minority Educational Institutions. The verdict was, indeed, close: 6-5. The line that the dissenting judges took was harsher and bleaker for the minorities, whether religious or linguistic.

The majority judgement has two parts: One is on the state-aided institutions and the other on the unaided. The aided ones – most minority institutions belong to this category – will be governed by the rules and regulations the state lays down on admission. But they will be "minimal". The Minority Educational Institutions will retain their character. But they will have to admit "a reasonable" number of non-minority students.

Although the state's interference is minimal, the BJP-run (Bharatiya Janata Party) governments can play mischief. Since there is no assured quota for students from the minorities, the state can drastically reduce their admission on the grounds of "merit".

Both prejudice and politics may come into play. Economically strapped minorities have been dependent on reservation in admissions. It helps them overcome their educational backwardness and get admitted to technical, professional and other institutions. Aligarh Muslim University is one example.

It has benefited the Muslims in terms of admission to medical and engineering institutions on comparatively low marks. One hopes that they will not be handicapped after the judgement. The central government can empower the university to admit Muslim students straightaway to such medical and technical institutions instead of devising methods to do so.

However liberal the government, it is not insulated against politics. At a time when the saffron forces are chipping away at the rights of minorities in the name of doing away with "appeasement", the pre-eminence of the state as regards the aided institutions can be more of a hassle. It can frame rules that may whittle down the character of minority institutions without making it obvious.

True, the new judgement modifies the Supreme Court's earlier verdict (St Stephen's College case). That judgement had given up to 50 per cent seats to students from the majority community in the aided minority institutions. Now there is no such obligation.

But some other requirements depress the minorities. They would have liked to go back to the pre-St Stephen's College criterion, which prevailed from 1950 to 1993.

Article 30 has been reinterpreted. It can be interpreted again after some years. The provision is still the bedrock of minority educational institutions‚ rights. The article says, "They (minorities) have the right to establish and administer educational institutions of their choice."

It also tells the state not to discriminate against them while granting aid on the grounds that it is under the management of a minority. The right is absolute. There is no proviso to the article.

Unlike the fundamental rights guaranteed by Article 19, it is not subject to reasonable restrictions. It is subsequent and not prior to Article 29, which says that no citizen can be denied admission to the aided-institutions on the grounds of religion, race or language.

There are valid reasons for a provision like Article 30. After partition the minorities were worried, the Muslims particularly. They felt handicapped because most of the qualified among them had gone to Pakistan. How would the preponderant Hindu majority treat them? The worry of Christians was over the government's interference in schools and colleges they efficiently ran.

The constitution framers were conscious of such dangers in a polity where the Hindus numbered more than 80 per cent. Therefore, the effort was how to ensure that the minorities could pursue their own culture. It was all the more important for a nation that had preferred secularism to a religion-based state.

Educational institutions topp-ed the constitution framers' agenda. The framers wanted to give the minorities confidence and a feeling of identity against the onslaught of conformism. A nation that had gone through the traumatic experience of division was bold enough to give the minorities educational institutions of their own.

In fact, the first task that engaged the attention of the constituent assembly, which met a few months before independence, was the adoption of the Objectives Resolution on the subject of fundamental rights, minorities, etc.

Several sub-committees met to finalise assurances given to the minorities before independence. They adopted what was called the Right to Religious and Cultural Freedom. It was spelled out as: "All citizens are equally entitled to freedom of conscience and to the right to profess and practice religion."

On education and culture, the constitution framers, who had suffered through years of freedom struggle, were clear. The society they had in view was pluralistic and hence required special attention to minorities. The draft was prepared accordingly.

It came to be adopted later as Article 30. The draft said: "All minorities whether based on religion, community or language, shall be free in any unit (part of the country), to establish and administer educational institutions of their choice. The state will not, while providing state aid, discriminate against schools under the management of minorities rather based on religion, community or language."

It is a pity that many madrasas have misused Article 30. Now that the education imparted there is on the mend, the government would do well to leave them alone. The Supreme Court has left the unaided institutions alone. The danger in such a step is that higher education becomes a preserve of the elite.

True, the capitation fee will go. But it will come back under some other name. Admission may become so expensive that the ordinary people will not be able to afford it.

Money will come to play a bigger role than merit. The judgement says that the procedure for admission should be "fair and transparent". When the unaided institutions are allowed to lay down procedures of their own, as the Supreme Court has done, the dice is loaded against an ordinary person.

The institutions will see to it that he does not rub shoulders with the sophisticated rich. The constitution, which has "socialism" in its preamble, cannot afford to be feudal in its educational policy.

The judgement once again underlines the necessity of brother judges on the constitutional benches sitting together to come to some unanimity. The chief justice himself wrote the main judgement. But four other judgements were written by different judges to give their interpretations. In handing down so many individual opinions, the court provides disturbing proof of its own confusion.

Incidentally, I have felt horrified over Karnataka Chief Minister S.M. Krishna's defence on his nonchalant attitude towards the Supreme Court on the Cauvery water dispute. In a press interview, he has said that being a lawyer he was careful which words to use while facing the contempt notice.

The question was about not releasing water to Tamil Nadu despite the Supreme Court's orders to do so. He defied them till the rains came. He can say that he got away with the disobedience