Faizan Mustafa is Vice-Chancellor of Chanakya National Law University, Patna
If there is one word that can appropriately describe India, it is ‘diversity’. This nation is all about heterogeneity. Preservation of this diversity is necessary to achieve the national goal of Viksit Bharat (developed India) by 2047. Protection of minorities is, indeed, the hallmark of a civilisation. According to Mahatma Gandhi, the claim of a country to civilisation depends on the treatment it extends to minorities. Lord Acton added a dimension: “The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.” Minority rights must not be understood only from the perspective of communalism versus secularism, and the nationalism versus sectarianism issue.
Preservation of diversity is the rationale of minority rights under the Indian Constitution. In fact, individualistic rights under Articles 14-18 (equality), 19 (free speech etc) and 25 (freedom of religion) are not enough for the conservation of language, script or culture under Article 29. It requires not only the presence of a group that shares that culture but a conducive environment in which cultures can flourish. Thus, under Article 30, both religious as well as linguistic minorities are allowed to establish and administer institutions of their choice so that such a space is created in these institutions.
India was divided in the name of religion; yet, the framers of our Constitution had a vision and commitment to protect minorities under the new Constitution. In simple terms, they preferred the preservation of distinct diversities through integration or a ‘salad bowl model’ rather than opting for the regressive, dated model of assimilation of minorities or the ‘melting pot’ model. Thus, special safeguards were guaranteed to the minorities with an intent to instil in them a sense of confidence so that their fears about majoritarianism were dispelled.
There is no appeasement of minorities under Article 30 as Hindus are a religious minority in a few states and a linguistic minority in all other states. These rights are basically relevant for the proper understanding of democracy, equality, and rights as the members of minority communities, being citizens, are entitled to equal rights.
A seven-judge bench in Aligarh Muslim University (2024) described in unequivocal terms Article 30 as a ‘facet of equality and non-discrimination. A nine-judge bench in St Xaviers College (1974) too had observed that “the whole object of conferring the right on 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.”
Article 30(2) explicitly says that the State, in granting aid, cannot discriminate against a minority institution. In the very first case on minority rights, Kerala Education Bill (1957), Chief Justice S R Das held that the State cannot impose such ‘onerous’ conditions either in granting aid or in giving affiliation to minority institutions that require surrendering the minority character of their institutions. At the same time, the Supreme Court has consistently maintained that minorities have no right to maladminister their institutions and the government can come up with reasonable regulations to insist on proper safeguards against maladministration, to maintain fair standards of teaching, and to ensure “excellence of the institutions.”
In St Xaviers (1974), the apex court explicitly observed that “under the guise of exclusive right of management, minorities cannot decline to follow the general pattern. In fact, they may be compelled to keep in step with others.” The courts have also been consistent in extending protection of Article 30 to pre-constitution institutions in cases like S K Patro (1969) and St Stephens (1992), and to a university in Azeez Basha (1968). In the latest judgment on AMU, the majority has held that even an institution of national importance can claim the minority character.
In Kerala Education Bill (1957), the court said that the dominant word in Article 30 is ‘choice’ and it is within the power of the minorities to expand their choice as much as they want. In Kesavananda Bharati (1973), rights under Article 30 were held to be the part of basic structure. The 11-judge bench in T M A Pai Foundation (2002) had left unanswered the question of indicia of a minority institution. Former Chief Justice D Y Chandrachud, in the historic AMU judgement, has laid down the indicia.
Interestingly, on the issue of indicia, there was broad agreement amongst the seven judges. They all preferred holistic, broad and flexible yardsticks such as ideation – a look at the genesis or the brain behind the idea. The person taking the initiative must belong to the minority community. His intent must be to found an institution ‘predominantly for the minority community’. Other factors to be considered would be collection of funds, getting land, construction of buildings, and governmental approvals.
It is not necessary that the administration must be vested in the minority itself. The right to administer is the consequence of establishment. ‘To do otherwise, would amount to converting a consequence to a pre-condition’, observed Justice Chandrachud. Though minorities must have the intent to administer their institutions, they need not exclusively control them and may take the help of other communities in their governance bodies. Neither the student body nor the teaching staff must be exclusively from the minority community. But the administrative structure should broadly reflect the minority character.
No minority institution should ideally be deprived of its minority character, either for accepting greater governmental oversight or giving representation to non-minorities in its governance structure. Since in most minority institutions some 50% or more non-minority students receive education, minority institutions are doing a great national service in educating even non-minorities in substantial numbers.
(The writer is Vice-Chancellor of Chanakya National Law University, Patna)
B R Ambedkar noted that the Constitution of India was not a mere lawyers’ document – “It is a vehicle of life and its spirit is always the spirit of age.” Seventy-five years since the adoption of the Constitution, its living text continues to guide India along the vision of its founders. But these are also times when the constitutional spirit is increasingly in conflict with reactionary narratives that undermine the tenets of the document. The Prism looks at the milestone with a throwback to the Constitution’s framing principles, nods to its endurance, and underlines threats to its foundational ideas.