By Irfan Engineer
The recent Judgment given by Justice S. N. Srivastava of Allahabad High Court to the effect that, Muslims in UP are not a minority within the state, came as a surprise to many. The media â€“ both electronic and print media gave prominent coverage to the judgment. The Judgment has now been stayed by the Division Bench of the same Court. The legal and Constitutional merits and demerits of the proposition will be gone into by the Appeal Courts upholding or overruling the judgment of the single judge of the Allahabad High Court in the coming days.
The Allahabad High Courtâ€™s judgment has in a way indirectly reopened the debate on rights of minorities under the Constitution. BJP spokespersons welcomed the judgment. BJP has always accused the Congress of following â€œminorityismâ€? or appeasement of minorities for the sake of their votes. Samna, a daily edited and published by Bal Thackeray also welcomed the judgment in the issue dated 6 Apr 2007 stating that too many concessions and privileges are being granted to the Muslims in India. The right wing politicians have led the people of India to believe that minorities enjoy too many special rights and privileges and that minorities means Muslims or at best Christians.
There is only one article pertaining to the Minorities in the Constitution of India. Article 30 of the Constitution provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The Constitution thus envisages that minorities can be based on religion or language. Not only Muslims and Christians but also Buddhists, Sikhs and even Jains are minorities. Moreover, Hindus are a religious minority within the state of Jammu and Kashmir, Mizoram, Meghalaya and Lakshadweep and enjoy the privileges of minorities under the Constitution in those states. But more important, and not perceived in popular imagination, is the category of linguistic minorities. In Maharashtra, all those speaking Gujarati, Tamil, Hindi, Kannada, Malayalam, Urdu and languages other than Marathi are minorities and enjoy the same privileges as religious minorities. Marathi speaking people in India are a minority in states other than Maharashtra. Thus all the citizens in India are a minority and enjoy the privilege of minorities. Not only Akbar Peerbhoy College and Saint Xaviers College in Mumbai are minority institution, but also Mithibai College (set up by Gujarati minorities), SIES College (set up by Tamil speaking minority in Mumbai) K.C. College, Jai Hind College (set up by Sindhi speaking minorities) are recognized as Minority educational institutions.
In TMA Pai Foundation Judgment, the Supreme Court has laid down that the right to establish educational institutions of their choice is available not only to the minorities but to all the citizens of the India. One of the fundamental rights in Article 19 of the Constitution â€“ to practice any profession, or to carry on any occupations, trade or business – has been interpreted by the Supreme Court to include right to establish educational institutions, which is a right guaranteed to all the citizens. What is the â€œexclusiveâ€? right of the minorities then? Minorities can not only establish educational institutions of their choice but also administer them. Supreme Court has further laid down that the right to establish and administer broadly comprises of right to (a) admit students; (b) set up a reasonable fee structure; (c) constitute a governing body; (d) appoint staff (teaching and non-teaching); and (e) take action if there is dereliction of duty on the part of any employees. Non-minority educational institutions are governed by the policies and regulations of the state government or the Central Government in matters of admission, appointment of staff, fixing the fee structure and constitution of governing body, where as the minority institutions are not.
The right to establish and administer educational institutions is to ensure that religion and language of minorities are preserved, reproduced, regenerated and recreated. The language, culture and religion of the majority need not fear that their language and religion will not be preserved, as the elected representatives are not expected to be insensitive to the cultural, linguistic and religious needs of the majority in spite.Except the right establish and administer educational institutions of their choice, there is no other â€œexclusiveâ€? right that minorities enjoy under the Constitution of India. Article 14, 15 and 16 prohibit any discrimination on grounds of religion, race, caste, sex, place of birth by the state. As Sachar Committee Report has pointed out, the Muslim minorities are not privileged but are discriminated and therefore are socially and economically backward. Not privileges, but inclusive growth is what is necessary to ensure social justice which was the dream of the Constitutional Fathers and all Indians minus the elites.