Status of Govt. funded minority educational institutions in India

Jamia Millia Islamia – A case study

By M. Tarique Siddiqui

The safe guarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals or persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can indeed be said to be an index of the level of civilization of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.

The minorities are as much the citizen of this great country (India) as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution.

Article 29 and 30 of the Constitution of India, are the fundamental rights given to minority communities to preserve their culture and to establish educational institutions of their choice. Article 30 (1) though styled as a fundamental right, is more in the nature of protection for minorities. The expression “establish and administer” used in Article 30 (1) was to be read conjunctively, that is to say, two requirements had to be fulfilled under Article 30 (1), namely, that the institution was “established” by the community and that its administration was vested in the community. The expression “educational institutions” in Article 30 (1) was wide enough to include a university.

The real reason embodied in Article 30(1) of the Constitution is the confidence of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best education to make them complete men and women of the country. The minorities are given this protection under Article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If the religious and linguistic minorities are not given protection under Article 30 to establish and administer educational institutions of their choice, they will feel isolated and separate.

The right of a minority to establish and administer an educational institution is protected by Article 19(1) (g) of the Constitution of India, yet the founding fathers of the Constitution felt the need of enacting Article 30. The reasons are too obvious to require elaboration. Article 30 (1) is intended to instill confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institution of their choice.

The regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be maintained between the two objectives – that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations could be lawfully enforced in minority institutions for the receiving of grants and recognition, while permitting the institutions to retain its character as a minority institution. The regulation must satisfy a dual test – the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.

The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial have preached the doctrine of tolerance and equality of outlook. Those noble ideas have been enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not by reduced to a mere abstract idea but should become a living reality and result in true genuine equality, an equality not merely in theory but also in fact.”

The Hon’ble Supreme Court of India in the 11-Judge Bench judgment, T.M.A. Pai Foundation v. State of Karnataka,1 has held:

Our country is often depicted as a person in the form of Bharat Mata- Mother India”. The people of India are regarded as her children with their welfare bring in her heart. Like any loving mother, the welfare of the family is of paramount importance for her.

For a healthy family, it is important that each member is strong and healthy. But then, all members do not have the same constitution, whether physical and/or mental. For harmonious and healthy growth, it is but natural for the parents and the mother in particular, to give more attention and food to the weaker child so as to help him/her become stronger. Giving extra food and attention and ensuring private tuition to help in his/her studies will, in a sense, amount to giving the weaker child preferential treatment. Just as lending physical support to the aged and the infirm, or providing a special diet cannot be regarded as unfair or unjust, similarly, conferring certain rights on a special class, for good reasons, cannot be considered inequitable. All the people of India are not alike, and that is why preferential treatment to a special section of the society is not frowned upon. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instill in them a sense of security and confidence, even though the minorities cannot be per se regarded as weaker sections or underprivileged segments of the society.

Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain privileges. Just to take a few examples: The government may decide to nationalize education. In that case it may be enacted that established and running of private educational institutions will not be permitted. Non minority educational institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly, even though the Government may have a right to take over management of a non minority educational institutions, the management of a minority educational institution cannot be taken over because of the protection given under Article 30.

Under Article 30(2), the state is under an obligation to maintain equality of treatment in granting aid to educational institutions, minority institutions are not to be treated differently while giving financial assistance. “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”. The state cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority. If an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2).

Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality most necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institution. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down.

The minority educational institutions are property of that particular community, the members of which have established the institutions. The minority status of the institution is referable to a community and the community’s constitutional rights could not be taken away either by the state or by its functionaries. The status of minority institution cannot be taken away by UGC or government merely by providing 100% fund in the form of aid/grant to such minority institution.

In T.M.A. Pai,2 the Supreme Court has observed that:

“A minority institution does not cease to be so the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit reasonable extent of non-minority students…”

The judgment of the Supreme Court in St. Stephen’s Case3 allowed the minority institutions to admit students of own minority community to the extent of 50% and it held the field at that point of time without any controversy. The judgment in T.M.A. Pai4 not only restores the position emerging from St. Stephen but virtually it enlarges the powers, privilege and scope of the minority institutions in respect of admission of the students from their own community. Now, it has been recognized that there is no limit of 50% intake from own community. The Institution may admit students of their own community even beyond 50% provided it is the need of community.

A legislation / regulation which could be imposed on the minority institutions must be conceived in the interest of these institutions and not in the interest of general public or a nation as a whole. If any executive or legislative encroachment which, while maintaining the formal character of the minority institutions, destroyed the power of the administration, was held justifiable on the ground of the national or public interest, the right guaranteed by Article 30(1) of the Constitution would become nothing but a “teasing illusion”, a promise of unreality.

Hence “The Central Educational Institutions (Reservation in Admission) Act, 2006,” which seeks to provide for the reservation in admission of the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, to certain central educational institutions established, maintained or aided by the Central Government and for matters connected therewith or incidental thereto, clearly states that the reservation mentioned in this Act shall not apply to a “minority educational institution” as defined in the said act under section 2(f), which is as under:

“Minority Educational Institutions” means an Institution established and administered by the minorities under clause (1) of the Article 30 of the Constitution & so declared by an Act of Parliament or by the Central Government or declared as a minority educational institution under “The National Commission for Minority Educational Institutions Act 2004”.

Status of Jamia Millia Islamia

To understand what is happening with the minority educational institutions in India, Jamia Millia Islamia is the best example.

Minority educational institutions such as Jamia Millia Islamia are doing yeoman service to the nation by providing an opportunity to the students of Muslim Community from different parts of the country and abroad, to interact with the students of other communities and vice versa which create a conducive environment for “National Integration” in the campus of the University and also motivates the students belonging to the Muslim Minority Community to join the “mainstream”.

Jamia Millia Islamia is a minority institution under Article 30(1) of the Constitution of India. The Community of Muslims acting collectively through driving force of prominent members of the Muslim minority community established a “National Muslim University” under the name ‘Jamia Millia Islamia in 1920 during the Khilafat and Non-cooperation movement in response to Gandhiji’s call for boycott of all government-sponsored educational institutions. Since its inception Jamia Millia Islamia functioned uninterruptedly and catered to a large volume of Muslim Students.

The objectives behind the establishment of Jamia Millia Islamia, as mentioned in the Memorandum of Association of Jamia Millia Islamia Society, Delhi, registered in 1939 under the Societies Registration Act, 1860, are as follows:

“To promote and provide for the religious and secular education of Indians, particularly Muslims, in the Jamia Millia Islamia in conformity with sound principles of education and in consonance with the needs of national life and to that end to establish and maintain suitable educational institutions within Jamia Campus and to set up and organize Educational Extension Centre’s in the Union Territory of Delhi from time to time.”

Jamia Millia Islamia was declared a “Deemed University” in 1962. After grant of status of deemed university the minority character of Jamia Millia Islamia was not changed. In 1988 it was granted the status of a Central University by an Act of Parliament known as Jamia Millia Islamia Act 1988 [(58 of 1988). By the said Act, Jamia Millia Islamia Society [property of Muslim community] was dissolved and all the properties, rights, powers, privileges of the said Society were transferred and vested in the University as contemplated in Section 4(i) of the Act. The Jamia Millia Islamia Act 1988 codified, declared, confirmed and encapsulated the continuous and pre-existing factual and legal position of Jamia Millia Islamia by incorporating the existing institution formally under the Act as a Central University.

On 1st May 1997 in CWP No 3025/96 titled as Aftab Alam Saklaini & Anr v. Jamia Millia Islamia, the High Court of Delhi struck down certain reservations relating to Urdu quota and employee quota.

On 6th May 1997, after the above judgment, the National Commission for Minorities (NCM) recommended to the ministry of HRD to bring a proper amendment to JMI Act 1988 to ensure minority character of Jamia. Thereafter on 9th may 1997 the Executive Council of Jamia adopted a resolution regarding its minority status stating that this institution reflects the educational and intellectual aspirations of Indian Muslims, it may be declared as a minority institution so that its historic character remains intact.

In the appeal being LPA No.132/1997 (titled: Jamia Millia Islamia V. Aftab Alam Saklaini) filed against the Order dated 1st May, 1997 of Hon’ble Delhi High Court, the Jamia has taken a clear stand that it has been a minority institution since its inception right from 1920. On 27.03.1998 in the said LPA it was directed that the appeal be listed for hearing in due course. However, liberty was granted to the parties to move an appropriate application for listing, after TMA Pai Case then pending before 11-Judge Bench of Supreme Court was decided.

On 1st August 1997 in Rajya Sabha, when the question relating to the demand by Jamia to bring certain amendments in Jamia Millia Islamia Act 1988 was raised, the Govt. has replied that “as the question relating to grant of minority status of educational institutions, including Universities are currently sub-judice before an Eleven Judge Bench in the Supreme Court, a decision on these issues by the Govt. would not be possible at this stage”.

In 2002, the Eleven Judge Bench of Supreme Court decided TMA Pai case and removed the ambiguity relating to the minority status of educational institutions. It observed that “a minority institution does not cease to be so; the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to minority group”.

However, to utter surprise concerned authorities in Jamia, on 02.02.2005 allowed the said LPA to be dismissed for non-prosecution and did not disclose the same to either Academic Council or Executive Council.

On 3rd April 2006 Ministry of HRD issued a specific direction to Jamia to take appropriate steps to admit students from Muslim minority community at least to the extent of 50%. The said directive of HRD Ministry was also not placed before Academic Council or Executive Council. The positive directive of Ministry of HRD ought to have been utilized in its full potential.

In the mean time Jamia received a general circular sent by the government to all the central institutions regarding implementation of 27% reservation for OBCs as proposed in “the Central Educational Institution (Reservation in Admission) Act 2006”. Without approval of Academic Council or Executive Council circular dated 21.09.2006 regarding implementation of 27% reservation for OBC in Jamia Millia Islamia was sent to all the Heads & Deans.

In the convocation address dated 29.10.2006 on the eve of 86 foundations day celebrations of Jamia, the Vice Chancellor stated that:

“This is not the only time when we have taken the lead in certain matters. When the increase of seats for the marginalized backward classes was suggested, we were the first to implement this step for social justice by increasing the seats for these Sections by around 700 seats.”

It is important to understand that non-prosecution of LPA on 02.02.2005 in the Hon’ble High Court; non compliance of directive dated 03.04.2006 of Ministry of HRD; and making efforts and declaration to implement the Central Educational Institution (Reservation in Admission) Act 2006” in Jamia Millia Islamia is part of the strategy to disturb and abrogate the minority status of one of the biggest educational institution belonging to Muslim Minority Community.

In furtherance to the malafide intentions to strip down Jamia from its minority status, the Jamia authorities have now taken a stand before “the National Commission for Minority Educational Institutions” [NCMEI] that Jamia is not a minority institution, as it is funded by the government. and is established/created by 1988 Act. This is being done only to implement the Central Educational Institution (Reservation in Admission) Act 2006, although the said Act is not applicable to minority institutions. The implementation of said Act would not only forfeit the minority status of Jamia but would also forfeit the minority rights of insecure and underprivileged Muslim students.

The Jamia Teachers’ Association (JTA), Jamia Old Boy’s Association (JOBA) and Jamia Students Union (JSU) have filed separate petitions in 2006 before the National Commission for Minority Educational Institutions [NCMEI] for declaration/issuance of certificate regarding minority status of Jamia Millia Islamia and for directions to the Jamia authorities to reserve at least 50% seats for the students belonging to underprivileged Muslim minority community in each course.

In response to the above petitions before the NCMEI the government filed reply vide its letter dated 4.10.2006 stating that:

‘A similar matter regarding the Minority Character of another Central University, namely, Aligarh Muslim University, is sub-judice in the Hon’ble Supreme Court, where the interpretation of the term “establishing” a university as was laid down in the “Azeez Basha” matter, is under challenge. The orders of the Hon’ble Supreme Court in that matter may have a bearing on the issues at hand in the present case of JMI.

Interestingly the observation and principle on the basis of which Azeez Basha case5 has declined the minority status to AMU, the same observation and principle favours and supports the minority status of JMI. It has been observed in Azeez Basha that the words “Educational Institutions” are a very wide import and would include a University also and therefore, it may be accepted that a religious minority had the right to establish a University under Article 30 (1).

The Azeez Basha case talks about three important dates i.e. 1920, 26th January 1950 and 1956 while declining the minority status to AMU, the same are precisely presented as under.

In 1920 The position with respect to the establishment of universities before the constitution came into force in 1950 was: It was open to a private individual or body to establish a university. There was nothing in 1920, to prevent the Muslim minority, if, it so choose to establish a university.

The Aligarh Muslim University was established in 1920, by legislation of the then government, and its degrees were recognized by the government. Hence it could not be said that the AMU was established by the Muslim minority.

If, Muslims would have wanted to establish their own university they would have established a university without insisting on the recognition of its degrees by the government.

On 26th January, 1950, When the present Constitution came into force on 26th January 1950, there was no property which was held by the Muslim minority as such they did not have any right in the property which was vested in the Aligarh University by the 1920, Act.

The Muslim minority cannot now after the Constitution came into force lay-claim to that property which was vested in the Aligarh University.

Aligarh Muslim University being not the property of muslin community cannot claim advantage of article 30 after the Constitution came into force.

In 1956, University Grants Commission Act, 1956 came into force. Section 23 of the Act prohibited the use of the word “university” by an education institution unless it is established by law. It was only thereafter that no private individual or body could establish a university and grant a degree in India.

The above mentioned observations and principles strengthen the minority status of Jamia Millia Islamia.

In 1920, Jamia Millia Islamia (National Muslim University) was established by the members of the Muslim community without seeking support and recognition from the government and thus was the property of the Muslim community.

On 26th January, 1950 when Constitution of India came into force wherein Article 30 was incorporated for the first time, on that day Jamia Millia Islamia being run by the society named Jamia Millia Islamia Society was the property of Muslim community and undisputedly it enjoyed protection under the provisions of Article 30.

In 1956, when the UGC Act came into force, within six years i.e. in 1962, Jamia Millia Islamia which was run by the Jamia Millia Islamia Society was declared a deemed university by UGC and undisputedly the society being the property of Muslim community continued till 1988 when Jamia was conferred the status of Central University.

It is an undisputed fact that Jamia was a minority institution when the constitution of India came into force on 26th Jan, 1950 and after such enforcement the Jamia enjoyed the rights and privileges flowing from Article 29 & 30 of the Constitution of India. On that day the Jamia was the property of Jamia Millia Islamia Society, which was established by the prominent Muslims of the Country. The Jamia was granted status of deemed University under the provisions of U.G.C. Act in the year 1962, when it was a minority institution. It is also an undisputed proposition of law that the fundamental right cannot be negated or violated either by the executive or by legislature and further the fundamental rights cannot be waived by any individual, person or institution. It is submitted that an Act of Parliament granted the Status of Central University to the JMI in the year 1988. This Act has not taken away right of the minority institution and if so the Act to that extent has to be read down.

The unfortunate story in Jamia’s case is that the public servants controlling the affairs of the institution have written to the government that they are willing to implement the Central Educational Institutions (Reservation in Admission) Act, 2006. The situation in Jamia’s case is different from the AMU case. The AMU authorities are themselves fighting the case and the judgment of the Supreme Court in the case of Azeez Basha is not in its favour whereas the authorities in Jamia are creating problems due to dichotomy in the approach.

Jamia Millia Islamia is the property of Muslim minority community. If, a public servant cannot forfeit the fundamental rights of an individual on any pretext then how can a public servant managing the affairs in Jamia be allowed to try to forfeit the fundamental right of the Muslim minority community by surrendering the minority status of the institution, by implementing “The Central Educational Institutions (Reservation in Admission) Act, 2006.” The said Act of 2006 is in no way applicable in minority educational institutions its implementation would only mean surrender/forfeiture of minority status of Jamia and also forfeiture of fundamental rights of the students belonging to Muslim minority.

It is also unfortunate for Jamia that the Muslim community, especially, the elders of the community and the institutions fighting for the cause of educational upliftment of the Muslims feel that the minority status problem of Jamia is the internal affair of Jamia and are staying away from their responsibilities without realizing that Jamia is the property of Muslim community and forfeiture of minority status of Jamia shall forfeit the minority rights of insecure and underprivileged Muslim students.

The “Sachar Committee Report” is an eye-opener. There is hardly any representation of the Muslim community especially in the field of technical and professional education. It has been recommended that it is high time to offer succor to the Muslim minority community so that they may join the mainstream.

After the “Sachar Committee Report”, the government is showing its intentions, willingness and commitments to open more educational institutions for Muslim minority. If so, the government must not try to disturb / abrogate the minority status of two biggest educational institutions belonging to Muslim minority community namely, “Aligarh Muslim University” and “Jamia Millia Islamia”. If the minority status of such institutions would be allowed to strip down, then Article 30 of the Constitution of India and Report of Sachar Committee, and the statement of the government to open more educational institutions for Muslim minority could be termed nothing but a teasing illusion, a promise of unreality.

(The writer is advocate at Delhi High Court)