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March 13, 2011

Page: 10/36

Home > 2011 Issues > March 13, 2011

A flawed decision

Granting minority status to Jamia Milia
Opening of another den of Islamic politics

By Ram Gopal

The NCMEI has argued that this University was established by the Muslims in 1920 for the benefit of the Muslims and, therefore, it has only been given its due as a minority institution. If this is true, why should the Central government of India finance it?

THE recent decision of the National Commission for Minority Educational Institutions (NCMEI) granting minority status to the Jamia Milia Islamia, Delhi, is unfortunate and satisfies only the fissiparous and secessionist elements of India. It will mean just converting this Central University into another pocket of Islamic politics, at the cost of the Hindu majority, like the Aligarh Muslim University. Already, the Jamia Milia Islamia is wholly funded by the Government of India. In its editorial, "A flawed decision", of February 25, the pioneer daily has rightly stated: "What is jarring is that a Central university in a secular country such as ours should have a communal colour".

The NCMEI has argued that this University was established by the Muslims in 1920 for the benefit of the Muslims and, therefore, it has only been given its due as a minority institution. If this is true, why should the Central government of India finance it?

Article 30 (1) gives all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. There is nothing in it or any other part of the Constitution saying that such minority institutions should be financed by the State. Article 30(2) only states that, in granting aid to educational institutions, the State will not discriminate against any educational institution on the ground that it is under the management of a minority. So, after getting State aid, the aided minority educational institutions come under Article 29(2), which reads, "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them". If a minority education institution is wholly maintained out of State funds, it will also be subject to Article 28 (1) which reads, "No religious instruction shall be provided in any educational institution wholly maintained out of State funds". In all probability, it is under this Article that the Central and State government do not allow religious instruction in aided educational institutions under Hindu management. Strangely enough, but aided or even wholly financed minority institutions, especially the madrasas, seem to be exempt from it.

The question whether admission of students to aided or unaided minority educational institution can be regulated by the government or by the university to which it is affiliated, was examined in detail by an eleven Judges Bench of the Supreme Court in the famous T.M.A. Pai Foundation case, ((2002) 8 SCC 713). The majority judgment of six Judges, dated October 31, 2002, ruled, "The moment aid is received or taken by a minority educational institution it would be governed by Article 29(2), and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In other words it cannot then give preference to students of its own community". The judgment also said "whilst giving aid to professional institutions, it would permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State". According to it, it is also permissible for the State to provide that the consideration should be shown on the weaker sections of the society.

Already, 51 per cent of the seats of the Jamia Milia are reserved for the Muslims and the rest are equally divided between the SC/ST and the general category students. With the minority status, the intention of the institute is to do away with the quota of the SC/ST and divert it also to Muslim community. Thus, Muslims would be having 75 per cent of the seats, leaving 25 per cent only for the general category candidates.

Incidentally, in answer to a question (no.11), whether non-minorities have also the right to establish and administer educational institutions under Articles 21 and 29(1), read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions, the above mentioned Bench stated: "The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a)". It may be stated that Article 19(6) relates to the State power to impose restrictions and to provide qualifications for professional or technical subjects and Article 26(a) is bout the normal State power of putting restrictions on account of public order, morality and health.

On the first question of the above mentioned case, namely, meaning of the term "minorities" in Article 30, the Bench ruled, "Since reorganisation of the States in India has been on linguistic lines, therefore, the purpose of determining the minority, the unit will be the State and not the whole of India." Thus, religious and linguistic minorities who have been put on a par in Article 30, have to be considered State wise.

Ground reality is that every metropolitan city - like Delhi, Mumbai, Kolkata, Chennai - has around linguistics minority communities. Suppose, on the basis of the above interpretation of the Supreme Court, every linguistic minority in each cosmopolitan city starts establishing and administering educational institutions of its choice and claims State funds for them, there will be all round anarchy. It would be difficult to find where India exists. In a way, Articles 29 and 30, as interpreted and executed by the Indian governments, have become the gateway of complete disintegration of India and its people.

It is actually a test case for the Indian nationalists, especially Hindus, both in their individual and collective capacity, to force the government and the Parliament to rectify the existing perverse policy of giving extraordinary privileges to the Muslims and Christians in the deceptive name of minority protection, and that too at the cost of the majority, by way of huge financial aid to their educational institutions, various scholarships to their children and setting up various commissions and committees with a view to empowering them, obviously against the docile Hindu majority.

Besides the above, the decision of the NCMEI is a violation of the HRD Ministry’s stand to defer consideration of the matter about declaring Jamia Milia Islamia as a minority institutions so long as the question of declaring the AMU, (a similar university), as a minority educational institution is not decided by the Supreme Court. It raises an important question of law as to whether the NCMEI is a superior executive authority over the HRD Ministry or a semi judicial body as generally understood. Needless to say that granting a minority status to an educational institution is an executive matter falling within the jurisdiction of the HRD Ministry. Tht Ministry will be well advised to take up the issue with the Prime Minister, the Ministry of Law and if necessary, the Supreme Court.

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