AMU minority status case: An opportunity to repair the illusion of a secular republic

As Aligarh Muslim University awaits an assessment of its minority status, the author traces the judicial trajectory of Article 30 for minority educational institutions and the distance the Supreme Court has strayed from ensuring social justice.

—

CONSTRUCTION of majority and minority identities is a typical mode of mobilising the people in electoral democracies.

An essentialist and rationalist approach toward group identities consistently fails to comprehend the systemic exclusion, violence and oppression ingrained in the formation of such identities.

However, it is always possible to deconstruct the nodal points that sustain the system of majority–minority and reconstruct new democratic possibilities. Minority educational institutions are one such nodal point in the Indian context.

While the constitutional idea of social justice hinges on the representation of historically excluded disempowered castes, it makes an exception in the case of minority educational institutions. Religion and language are the basis of Article 30 of the Indian Constitution, overriding the determinative force of 'caste as class' in the distribution of educational goods.

Assumptions around Article 30 and the emptiness of minority rights

Article 30 is the only express provision in the Constitution that refers to religious minorities and hence carries all the burden of minority rights. 

Articles 15(4) and 15(6) make provision for Other Backward Classes (OBC), Scheduled Caste (SC), Scheduled Tribes (ST)— the Pasmanda-Bahujan— and the Economically Weak Savarnas (EWS) in educational institutions.

None of these categories take into account the religious identity of an individual or class to ascertain their educational needs except for the SC category. These categories, by and large, cover 90 percent of India's population, including the majority of every religious group whose educational needs are sought to be fulfilled by Article 30.

Also read: Why India Must Remember its First Muslim Jurist

In popular discourse, the right given by Article 30 is understood as a special concession available to religious minorities exclusively but not to religious majorities.

However, this assumption overlooks the import of Article 19(1)(g) (right to practise any profession, carry out occupation, trade or business), Article 26(a) (right to establish institutions for religious and charitable purposes), Article 28(2) (educational institution aided by State established as trust requiring religious instruction) and Article 28(3) (attending religious worship in educational institution aided by State) on the question of the establishment of educational institutions or the possibility of religious instruction that can be imparted in them.

The combined effect of these Articles is that all citizens, irrespective of their religion, are entitled to establish educational institutions in the public and private sectors in which they can secure a provision for religious instruction if they so wish.

Thus, the possibility of imparting religious instruction or conducting religious worship is neither an exclusive preserve of minority educational institutions nor dependent on the existence or non-existence of Article 30.

Once it is acknowledged that Article 30 does not offer anything exclusive to the so-called religious minorities, a curiosity to understand the performative functions of minority educational institutions is inaugurated.

Under our constitutional scheme, social justice policies in educational institutions are primarily carried out under Articles 15(4) (power of State to make special provisions for SC and ST) and 16(4) (reservation). These Articles do not provide that social justice policies have to steer clear of minority educational institutions in their application. Nor does Article 30 hint towards any such course.

It is the Supreme Court's interpretive derive that managed to insinuate minority educational institutions from the democratising influence of Articles 15(4) and 16(4), so much so that such an exclusion eventually got inscribed under Articles 15(5) (special provisions for SC and ST admission to educational institutions) and 15(6) (special provisions for EWS and admission to educational institutions) of the Constitution.

One needs to go through the jurisprudence that evolved around minority educational institutions to understand how this feat was achieved.

Supreme Court-enacted exceptionalism

The question of whether the social justice mandate of Articles 15 and 16 extends to minority educational institutions was decided rather ambiguously by the Supreme Court In Re The Kerala Education Bill. However, it gave an early indication that the shield of minority rights could be used to derail both social justice and the 'common education system'.

Introduced by the Kothari Commission, the common education system endeavoured to provide equal educational opportunities to all children, irrespective of their socio-economic background. 

Also read: The Dravidian remedy to the inequities of Hindutva

Moving in that direction, the ratio in Rev. Sidhajbhai Sabhai & Ors versus State of Bombay & Anr effectively precluded Pasmanda-Bahujan students from invoking Article 15(4) to secure admission in minority educational institutions.

The ground for nullifying Article 16(4) was laid down in Rev. Father W. Proost &Ors versus The State of Bihar & Ors whereby the unqualified right to appoint the staff members was recognised for Article 30 institutions by upholding the exemption granted to minority educational institutions from common appointment procedure.

Following Father Proost, D. A. V. College versus State of Punjab & Ors held that the impugned statutory provision with the potential for ensuring reservation in staff appointments of affiliated minority colleges was violative of Article 30.

Consistent judicial exceptionalism in favor of minority educational institutions forced some state legislatures to incorporate Article 30 exclusions in their laws on educational institutions.

In Rt. Rev. Bishop S. K. Patro & Ors versus State of Bihar & Ors the Supreme Court  invalidated the Order of educational authorities requiring the secretary of the Church Missionary Society Higher Secondary School to constitute a managing committee because it was in violation of the exclusion rule.

By the time State of Kerala very Very Rev. Mother Provincial was decided, where the regulation and composition of managing and administrating bodies of minority educational institutions was directly in issue, the question of implementing Article 16(4) could not be raised at all.

Reaffirming all the above judgments, the nine-judge Bench in The Ahmedabad St. Xaviers College Society & Anr versus State of Gujarat & Anr held that certain provisions of the Gujarat University Act, 1949 which could be invoked to enforce Articles 15(4) and 16(4) were inapplicable to minority educational institutions.

Also read: 'Education is not the business to earn profit': Supreme Court

Further, the tendency to invoke Article 30 to derail any movement towards the common education system continued in St. Xaviers College as well. 

Following St. Xaviers College, laws concerning service conditions of staff were held to be inapplicable to minority educational institutions, stalling all progress on social justice and the common education system.

These decisions included Lilly Kurian versus Sr. Lewina & Ors, All Saints High School, Hyderabad versus Government of Andhra Pradesh & Ors and Frank Anthony Public School versus Union of India & Ors.

The representation question in minority educational institutions became a direct issue in St. Stephen's College versus The University of Delhi for the first time, where it was resolved in such a manner that 50 percent of seats in minority educational institutions were reserved for upper castes from minority religions (Ashraaf) and the other 50 percent were reserved for upper castes from majority religion (Savarna).

The question of social justice in staff appointments again remained in suspended animation.

Aligarh Muslim University case as an exception to the exception

In the background of the above judicial trajectory, Aligarh Muslim University (AMU)'s controversy about its minority character comes across as an exception to the exception.

The issue in such battles has been generally framed by the Supreme Court on the following trope: the right to administer under Article 30 must be preceded by the proof of establishment of the institution by the minority community.

However, in S. Azeez Basha & Anr versus Union of India, the Supreme Court took great pains to bring out the meaning of the word 'establish' only to depart from the path established by the previous judgments on the subject.

Also read: Bebaak Collective's new report underscores the toll on mental health of institutionalised communalism on Muslims of India

It was held that AMU was brought into existence by the Central legislature and the government of India. Therefore, the Muslim minority could not claim to administer it under Article 30.

Although this judgment did not change anything on the ground, it did manage to completely obscure the issue of Pasmanda-Bahujan representation in AMU which continues to be dominated by Ashraaf Savarna.

Privatisation of education and minority educational institutions: From exceptional to constitutional

With the neoliberal turn in 1991, the question of social justice in private educational institutions could not be avoided anymore. Mohini Jain versus State of Karnataka & Ors and Unni Krishnan, J.P. & Ors versus State of Andhra Pradesh & Ors took some tentative steps to keep that hope alive in private educational institutions.

Several state governments insisted that minority educational institutions too follow the Unni Krishnan scheme. However, minority educational institutions intuitively claimed that being minority educational institutions, they were exempt from any such scheme, and the whole issue of social justice in private educational institutions got transformed into a dispute about the scope of Article 30 and minority educational institutions!

Within ten years, the hopes built up by Mohini Jain and Unni Krishnan were done and dusted through T.M.A. Pai Foundation versus State of Karnataka series of Orders and judgments which constitutionalised privatisation of education.

Moreover, judicially carved out exceptional became constitutional, passing through the Islamic Academy of Education & Anr versus State of Karnataka & Ors to P. A. Inamdar versus State of Maharashtra and finally the 93rd Amendment Act, 2005 which added Article 15(5) to the Constitution and insulated minority educational institutions from social justice policies.

Following the lead provided by Article 15(5), the Central Educational Institutions (Reservation in Admission) Act, 2006 (aimed to secure Pasmanda-Bahujan representation in central educational institutions) also excluded minority educational institutions from the ambit of reservation.

By insulating minority educational institutions from social justice policies, the Parliament also insulated similar judicially constructed anti-social justice zones.

Also read: Constitutional and legal implications of the Bihar caste survey

Nevertheless, the validity of Article 15(5) was challenged in Ashoka Kumar Thakur versus Union of India & Ors and Pramati Educational & Cultural Trust versus Union of India. Unsurprisingly, both upheld the validity of Article 15(5).

While doing so, Pramati effectively observed that excluding Pasmanda-Bahujan from admissions in minority educational institutions maintains the secular character of India!

Secularism, it would appear, is a perfect nemesis of social justice in this part of the world. That is why when the 103rd Constitutional Amendment Act of 2019 added Article 15(6) granting routine exemption to minority educational institutions, nobody raised an eyebrow.

Envisaging inclusive educational spaces

The development of constitutional strategies to reorganise the present educational space as a shared place for associated living is a foremost democratic task of our time.

Following legal strategies can be tentatively suggested to fulfill this task.

In the first stage, minority educational institutions must provide reservations to Pasmanda-Bahujan who hail from the respective religious or linguistic group that has set up that particular minority educational institution.

In the second stage, minority educational institutions and private educational institutions can provide reservations to all Pasmanda-Bahujan irrespective of religious affiliations, with full financial support.

Finally, Article 30 can be replaced by providing reservations to all Pasmanda-Bahujan communities in all educational institutions, whether public or private, by sub-categorising similarly placed castes based on their socio-educational status.

For the last stage to become a reality, some form of common schooling system which is the most distinguishing feature of all developed countries, must be put in place.

To conclude, the basket of minority rights constructed around Article 30 is quite empty to begin with. Deconstruction of judicial discourse on minority educational institutions reveals the following two facets associated with it:

1) Minority educational institutions are used as the constitutive outside to organise Savarna-Ashraaf interests in the field of education, and for this purpose, 2) the specificity of minority educational institutions is maintained by the exclusion of social justice policies from them.

This ensures that Pasmanda-Bahujan kids and youth do not develop any relation of friendship and solidarity in the formative stages of their lives. Thus, it is not difficult to see how the Ashraaf discourse on minority rights ends up producing Savarna might.

The ongoing Aligarh Muslim University (AMU) case in the Supreme Court might be used as a perfect opportunity to repair the illusion of a secular republic without spending a penny.

Not only would upholding the minority character of AMU be fully consistent with extant judicial pronouncements, but it would also continue to reproduce social segregation in educational spaces which is crucial in the formation and maintenance of Hindutva republic.