Shrinking Minority Rights in India. By Father Anand Muttungal
16 May 2012
By the beginning of the 19th century, issues related to minorities began to be one of the major concerns of the leaders and rulers of India. In the beginning it was a problem based on religious diversification but in two decades the issues related to linguistic minorities too became a problem. The reports submitted by the Motilal Nehru Committee on the communal problem, 10 August 1928, suggested creating provinces based on language, special efforts protect local language and culture, and special reservation to minorities in the elected bodies. Probably it could be right to believe that they could not define the term “minority”; even the constituent assembly made no efforts to define the term but left it to the Courts to decide according to its wisdom. It has probably over the years it has let to shrink the rights of the minorities in a judicial way.
The first assault on minority rights began with the Kerala Education Bill 1957 that proposed to centralizing recruitment of teachers in the aided schools through State Public Service Commission, taking over the collection of fees, taking over of management in the event of specified failings etc. It was later rectified by the six bench judges of the Supreme Court in response to opinion sought by the President of India under article 143(1) of the Constitution. The debate on the issue of minorities again came up in 1993 with the higher education policy of Karnataka Government on admission, fixation of fee and many other aspects of administration of the colleges and in 2005 Maharastra Government followed the suit with a general policy on fee regulation and reservation in higher education institutions. T.M.A. Pai Foundation and P A Inamdar brought these issues to the Supreme Court and larger constitutional benches delivered clear direction to the Government on various questions related to minority institutions. The recent judgment by the Supreme Court on RTE that ‘it should be applicable to the aided minority education institutions’ has given a scope to the Governments to restrict the rights of the minorities. While speaking on the proposed amendment of RET in the Lok Sabha, (May 9, 2012), Human Resources Development Minister Kapil Sibal stated, “minority institutions are out of its purview” while noting that the Supreme Court too had passed an order saying this law would not be applicable to minority institutions. The amendment stated that ‘in Section 21 of the RTE Act, in sub-section (2), the following proviso shall be inserted, namely: “Provided that the School management Committee constituted under sub-section (1) in respect to a school established and administered by minority, whether based on religion or language, shall perform advisory functions only.”
The present judgment of the Supreme Court that ‘RTE will be applicable to aided minority schools’ and the amendment passed by the Lok Sabha ‘to form school management committee’ too are clearly indicating a challengeable difference of opinion with the Supreme Court Judgment in T M A Pai Foundation Case which said, “A minority institution does not cease to be so; the moment grant-in-aid is received by the institution.”
The present RTE Judgment of the Supreme Court and the Amendment made by the Parliament has divided the minority run educational institutions into aided and un-aided. Probably people in power are happy that their elite schools are out of its preview but what about those people working in the aided schools which serve the real poor. The present developments are clear sign of restricting the constitutional rights of the minority into a small semi circle. In-spite of this dark shade we have hope that while delivering the judgment one of the judges disagreed with including aided minority institutions under RTE. Therefore we must go for a review of the judgment for a greater cause.