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Friday, September 30, 2005

Reverse discrimination and abuse

By M.G. Vaidya

Justice K. T. Thomas, retired judge of the Supreme Court has, recently written an article titled "Courts, Colleges, and Governments", in the The Hindu, August 30. In his article, he has passingly referred to Article 30 of our Constitution. This article is focussed on Article 30 alone.

Every reasonable person will fully agree with the Supreme Court's observation: "the real purpose of Article 30 is to prevent discrimination against members of minority communities and place them on an equal footing with non-minority; reverse discrimination was not the intention. " I have to say that in spite of the sanguine advice from the highest Court, this Article is bound to be abused by interested parties. Therefore it deserves to be deleted from our Constitution. I have come to the well-thought out conclusion that Article 30 is irrelevent, un-called for and mischievous too.

On the face of it the words of this Article appear innocuous, but they are not so. The Article reads as follows—"All minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." The first, the foremost and the fundamental question is which are the minority religions? Majority and minority are relative terms. Unless you define the majority religion, you cannot determine the minority religions. In the case of the languages it is easy to determine their majority and minority characters. For example, in Maharashtra, majority of people speak Marathi, therefore all people speaking any language other than Marathi i.e. Gujrati, Hindi, Kannada, etc. are linguistic minorities. But in the realm of religion, which is the majority religion? People are likely to answer that Hinduism is the majority religion. But the basic question is, is Hinduism a religion like Christianity or Islam? The Supreme Court has decreed that Hinduism is not a religion; it is a way of life. A way of life should connote a certain value-system which should ultimately mean culture. Any knowledgable person should be able to distinguish religion from culture. The explanation attached to Article 25 includes Sikhs, Jains and Buddhists in Hindus. The words are; "in sub-clause[b] of clause[2] reference to Hindus shall be construed as inclusing a reference to persons professing the Sikh, Jain or Buddhist religion and reference to Hindu religious institutions shall be construed accordingly." The Hindu Code Bill is applicable to Sikhs, Jains and Buddhists also. When Dr. B.R. Ambedkar was piloting this Bill in Parliament, a Sikh MP protested that the bill will obliterate the identity of the Sikhs. Dr Ambedkar gave a fitting reply and silenced him. It will be fruitful to quote Dr. S. Radhakrishan the great philosopher here. He observed "Hinduism is not a religion. It is a common-wealth of many religions." Nobody will dare accuse Dr Ambedkar or Dr Radhakrishan as having RSS leanings. So in the absence of a majority religion, there cannot be a minority religion on which any fundamental right could be conferred.

Is it proper that because the management is owned by a so-called religious minority, the institution becomes a minority institution eligible to reap all the advantages of its minority character?

Presuming but not admitting that Christainity and Islam or for that matter, Sikhism, Jainism or Buddhism are minority religions, what prevents them from establishing their educational instititions? The Constitution is very explicit and unambiguous about it. Article 14 guarantees equality before law. It says, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

Article 15 explains this fundamental guarantee. It lays down, "The State shall not discriminate against any citizen on grounds only of religion, race, class, sex, place of birth or any of them." Article 16 further adds, "There shall be equality of opportunity for all citizens in matters relating to employment or appointement to any office under the State. (2) No citizen shall,only on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State." Article 19 gives a fundamental right to all to establish their associations and unions. Are not minorities included in "All?" Do they not form associations to establish educational institutions? Where is the obstacle? Where is the hindrance? Where is the constraint?

In the absence of any constraint or limitation, because there is this provision of Article 30, the courts have held that the so-called minorities have an overriding right to ignore, abuse or subvert any law of the State. The laws of the State can either be good or bad, but how can they be good for the majority and bad for the minority or vice versa. We cannot blame the courts. They have to justify the presence of this Article. This Article gives an unfettered right to the minorities to establish their educational institutions. Therefore on one side we get a spectcle of 90 per cent of teachers' training colleges being run by Christian associations in one district of Tamil Nadu and on the other,the Ramkrishna Mission of Calcutta in order to save itself from the rigours of the West Bengal government rules had to submit an affidavit, that they are not a Hindu organisation. It is ironical that Hindus, in this land of Hindusthan are made to suffer severe disadvantages because they are in a majority. Nowhere in the world will one witness such absurdity. It is to be noted that because Hindu people are in a majority in this country that the minorities are having special rights. Do minorities in Pakistan or Bangladesh have any such rights?

One more point.

On what basis should an institution can and should be called a minority institution? Is it proper that because it is owned by a so-called religious minority, the institution becomes a minority institution eligible to reap all the advantages of its minority character? Take the case of Bislop College of Nagpur where I served as a teacher for 17 years. It is managed by the Church of Scotland. But it does not cater only to the needs of students of its denomination. More than 90 per cent of its students are non-Christians. The subjects taught there are all secular subjects, like any other college.

Why should it get the status of a minority institution on religious grounds? Why should it not be subject to all the rules and regulations of the Government in relation to reservation in admissions and appointments? I have nothing against Bislop College, which treated me with great respect and honour. The point is about its being above the law of the land. The same will hold good in the case of a Muslim school or an institution belonging to a linguistic minority. Therefore, the recent demand of the counsel for minorities to give them unfeterred rights to administer their technological institutions is without any reason and hence deserves to be rejected.

Nobody will dare accuse Dr Ambedkar or Dr Radhakrishan as having RSS leanings. So in the absence of a majority religion, there cannot be a minority religion on which any fundamental right could be conferred.

In short, Article 30 in our Constitution is unnecessary, because ample guarantees are given to all including minorities in different Articles of our Constitution. It should be deleted because it is discriminatory against the majority community. If at all it is felt that it is essencial to assure and please the minorities, the advantage should be restricted to only those institutions that minister to the needs of the students of their denomination, whether religious or linguistic. They should not be allowed to exploit the space that is meant for all. Now that the Supreme Court is seized of the matter, it should determine the qualifications for acquiring a minority institution status. Simply because an institution is owned and managed by a so-called minority group should not be the criteria.

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