>Raju contends that the prejudices of the majority Judges
have
>reflected in the form of obiter dicta, like the one above. He calls it
>a reflection of the unconscious prejudice which the majority Judges
>had with an implied premise that the minorities cannot have any
>fundamental right which is not available to the majority community or
>reflected in the form of obiter dicta, like the one above. He calls it
>a reflection of the unconscious prejudice which the majority Judges
>had with an implied premise that the minorities cannot have any
>fundamental right which is not available to the majority community or
>non-minorities. Another obiter dicta referred to by Raju is
this: "At
>the same time, there also cannot be any reverse
discrimination... No
>one type or category of institution should be disfavoured or, for that
>matter, receive more favourable treatment than another. Laws of the
>land, including rules and regulations, must apply equally to the
>majority institutions as well as to the minority institutions." Raju
>observes that such comments from the majority Judges are the creation
>of Freudian slips or the reflection of constitutional philosophy held
>by individual Judges. Although these comments, being part of the
>verdict, will not have any binding value, they can be picked up and
>one type or category of institution should be disfavoured or, for that
>matter, receive more favourable treatment than another. Laws of the
>land, including rules and regulations, must apply equally to the
>majority institutions as well as to the minority institutions." Raju
>observes that such comments from the majority Judges are the creation
>of Freudian slips or the reflection of constitutional philosophy held
>by individual Judges. Although these comments, being part of the
>verdict, will not have any binding value, they can be picked up and
>used before the High Courts and the Supreme Court, Raju
feels. To a
>lay reader, it is difficult to distinguish such comments from the
>general complaint of the Hindu Right against the `appeasement' of
>lay reader, it is difficult to distinguish such comments from the
>general complaint of the Hindu Right against the `appeasement' of
>minorities, as articulated by the various wings of the
Sangh Parivar.
*** Raju is right!
*** This whole idea of 'reverse-discrimination' in a minority
institution is a false one, because the MI is created for the purpose
of preserving minority interests. The majority has ample
opportunities and institutions, in fact overwhelmingly so, to
influence and impose their will. For if they did not, the need for
minority institutions would not arise to begin with.
At 10:15 AM -0500 5/5/06, Ram Sarangapani wrote:
I think the discussions on the net on the subject are going around in
circles. Maybe this article will clear things up(?) and we can all
come to "knowledgeable" conclusions -:)
--Ram
And for C'da:
"At the same time, there also cannot be any reverse discrimination...
No one type or category of institution should be disfavoured or, for
that matter, receive more favourable treatment than another. Laws of
the land, including rules and regulations, must apply equally to the
majority institutions as well as to the minority institutions." - MP
Raju
___________________
http://www.hinduonnet.com/fline/fl2001/stories/20030117001307300.htm
Minority Rights: Myth or Reality: A Critical Look at the 11-Judge
Verdict with Full Text by M.P.Raju; Media House, Delhi, 2002; pages
336, Rs.195.
THE principles of secularism and pluralism have proved to be resilient
in India despite aggressive onslaughts by fundamentalist forces
claiming to represent the majority community, primarily because of the
constitutional protection guaranteed to the minorities to preserve
their language, religion and culture. This protection, enshrined in
Articles 29 and 30 and grouped as Cultural and Educational Rights, has
given the minorities a sense of security and belonging, especially in
the context of the communal violence that marked Partition in 1947, as
also the linguistic reorganisation of States in the mid-1950s.
Therefore, any judicial interpretation of these constitutional
provisions is bound to be debated intensely for its impact on the
minority rights and to throw light on whether the intentions of our
Constitution-makers in introducing these Articles have been honoured.
The judgment delivered on October 31, 2002, in the T.M.A. Pai
Foundation case on minority educational institutions (MEIs) by an
11-member Constitution Bench of the Supreme Court has elicited varied
reactions. The court held that the rights of linguistic and religious
minorities (as well as the majority community) to set up educational
institutions of their choice are unfettered, but that the right to
administer them is not absolute. The State and the universities could
apply regulatory measures in order to maintain educational standards
and excellence in such institutions, it held (Frontline, November 22,
2002).
The judgment is important from the point of view of the interplay
between Articles 29(2) and 30(1). Article 29(2) lays down that no
citizen shall be denied admission to any educational institution
maintained by the state or receive aid out of state funds on grounds
only of religion, race, caste, language or any of them. Article 30(1)
guarantees all minorities, whether based on religion or language, the
right to establish and administer educational institutions of their
choice. The intention of the Constitution-makers would not have been
to let Article 29(2) prevail over Article 30(1); that is, having
allowed a minority community to establish an educational institution
receiving aid out of state funds, its right to administer it by
admitting eligible students from the minority community that the
institution seeks to represent cannot be restricted, simply because it
would result in the denial of seats to students belonging to
non-minority communities.
However, nine of the 11 Judges concluded that as long as MEIs
permitted the admission of non-minorities to a reasonable extent based
on merit (what the reasonable extent is would be determined by the
State), it would not be an infraction of Article 29(2). This part of
the judgment invited noteworthy dissents by Justices Ruma Pal and
S.S.M. Quadri.
The author of Minority Rights, M.P. Raju, a Supreme Court advocate and
counsel for one of the petitioners, observes that there can be no room
for compulsory reservation or quota for non-minority students as long
as minority students are available. Only after students belonging to
the particular minority group have been given admission will the
rigour of Article 29(2) become applicable in an MEI, Raju explains,
agreeing with the dissenting judgments of Justices Ruma Pal and
Quadri.
Raju notes that the majority judgment attempts to give restricted
meaning to minority rights, whereas the two dissenting judgments
resort to a liberal interpretation in favour of the minority. For
students of the sociology of law, the judgment offers useful lessons
on the possibility of the effects of influences on the thinking and
reasoning of the individual Judges. The fact that of the two
dissenting Judges, one is a Muslim and the other a woman, `who belongs
to a qualitative minority being a non-dominant group', has its own
significance, the author observes.
In the view of the majority Judges, "any regulation framed in the
national interest must necessarily apply to all educational
institutions, whether run by the majority or the minority. Such a
limitation must necessarily be read into Article 30. The right under
Article 30(1) cannot be such as to override the national interest or
to prevent the government from framing regulations in that behalf".
Justice Quadri, in his detailed dissent (delivered on November 25,
2002) with this view, has pointed out that what Article 30 predicates
is institutional autonomy on the educational institutions established
and administered in exercise of the right conferred thereunder, which
cannot be interfered with by the state except to the extent of framing
reasonable regulations in the interest of excellence of education and
to prevent maladministration.
Raju contends that the prejudices of the majority Judges have
reflected in the form of obiter dicta, like the one above. He calls it
a reflection of the unconscious prejudice which the majority Judges
had with an implied premise that the minorities cannot have any
fundamental right which is not available to the majority community or
non-minorities. Another obiter dicta referred to by Raju is this: "At
the same time, there also cannot be any reverse discrimination... No
one type or category of institution should be disfavoured or, for that
matter, receive more favourable treatment than another. Laws of the
land, including rules and regulations, must apply equally to the
majority institutions as well as to the minority institutions." Raju
observes that such comments from the majority Judges are the creation
of Freudian slips or the reflection of constitutional philosophy held
by individual Judges. Although these comments, being part of the
verdict, will not have any binding value, they can be picked up and
used before the High Courts and the Supreme Court, Raju feels. To a
lay reader, it is difficult to distinguish such comments from the
general complaint of the Hindu Right against the `appeasement' of
minorities, as articulated by the various wings of the Sangh Parivar.
The majority Judges have also held that even an aided institution
should not become a government-owned and controlled one, and that they
have to incur revenue and capital expenses. They, therefore, felt that
the decision on the fee to be charged must necessarily be left to the
private unaided educational institutions. This shows, according to
Raju, that they seem to have been influenced by the winds of
liberalisation and globalisation, as opposed to the interests of the
student community.
Raju explains an important flaw in the judgment, with reference to the
unit for the determination of a linguistic or religious minority. All
Judges, except Justice Ruma Pal, held that the unit should be the
State. Raju disagrees with the majority Judges' view that linguistic
reorganisation of the States meant that for the purpose of Article 30,
linguistic minorities ought to be determined in relation to State
alone. The rights under Article 30 is available not only to the
linguistic minorities of the major languages, relatable to the States,
but also to the speakers of numerous minor languages that are not
represented by any State of their own.
He has pointed out that in a unitary federal country like India,
linguistic groups, even if they constitute a majority in a State, need
protection under Article 30 against the legislative and executive
actions of the Union, in relation to which they may be minorities.
Therefore he has suggested that to determine minority character or
status, the unit should be the one against which protection is sought
or whose action is impugned as offending Article 30. If the executive
or legislative action of the Union is under challenge, then the unit
for the determination of minority character should be the Union. If an
executive or legislative action of a State concerned is under
challenge, then the unit to determine minority status should be the
State. The majority Judges have inadvertently concluded that since
linguistic and religious minorities are dealt together under Article
30, the unit should be the same. There is no incongruity in adapting
two separate criteria only because both are dealt with under the same
Article together, Raju observes.
Considering the gaps in the 11-Judge verdict, there is still
considerable scope for redefining and enriching the concept of
minority rights as guaranteed under the Constitution.
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